Rights of way: the possible importance of a common intention

28 / 09 / 2016

It is not uncommon for a prospective purchaser of land to spot that some kind of easement (like a right of light or a right of way) over a neighbouring property might be in place even though there is no corresponding right registered at the Land Registry.

Such an easement could have been acquired by use without force, without secrecy and without permission over a period of 20 years or more.

It might also have been acquired by implication:

  • on the basis of the right having been in existence and used at the time of the original carving out of the parcel of land being acquired.  This is provided that there was no express exclusion of the magic dust that is sprinkled on such transfers by section 62 of the Law of Property Act; and/or
  • the principles set out in the case of Wheeldon v Burrows turning such quasi-easements into formal easements on the creation of the new parcel of land.

If neither of these circumstances apply it is also possible, though, that an easement may have been created in the past by legal implication on the basis of the common intention of both the vendors and the purchasers.

This common intention has to be held by all of the relevant people which will include:

  • the owner of the whole of the original land (“the Original Owner”); and
  • following the original transfer carving out the new titles, the owner of the dominant land – i.e. the land which has the benefit of the right being exercised – (“the Dominant Land Owner”); and
  • the servient land – i.e. the land over which the right is exercised (“the Servient Land Owner”).

In the recent case of Linvale v Walker (in which Wedlake Bell acted for the successful Dominant Land Owner) the court were asked to find that there was a common intention to grant a right of way.  It was argued by Wedlake Bell that even if no use of the emergency right of way had been exercised for a number of years before the transfer (as the property had been unoccupied for some time) all of the Original Land Owner, the Dominant Land Owner and the Servient Land Owner intended that a right of way be granted in favour of the Dominant Land Owner over an emergency exit on land belonging to the Servient Land Owner.  Specifically, the Servient Land Owner was going to benefit financially if the Dominant Land Owner was able to let the separate parts of the commercial space to different tenants as quickly as possible.  This was more likely if the tenants of different parts of that space were able to use the emergency right of way.  Likewise, the Original Land Owner had an obligation to pay monies equivalent to a rent until tenants were found so it also benefited financially from separate parts of the commercial space being able to use the emergency right of way.

The finding of the court was, therefore, that even though the emergency right of way had not been used by anyone for a number of years prior to the sale by the Original Land Owner to the Dominant and Servient Land Owners it was still possible to imply such an easement on the basis that this was what all of the relevant parties had intended at the time of the transfers.

So, anyone thinking about buying a property which looks like there could be unregistered easements benefiting or being exercised over that land should not only think about what rights were being exercised at the time of the original carving up of the Dominant and Servient Land, but also whether all of the parties to those original transfers might have intended that the Dominant Land have the benefit of an easement even though it was not being exercised at the time of the transfers.