Important issues to consider when granting rights over land

There are a number of occasions when you may wish to grant rights or be granted rights over property. For example, when selling part of your land, you may wish to retain a right of way over that land for access purposes or you may be willing to grant someone else the right to enter your land in order to repair and maintain parts of their property. Whatever the reason for granting or reserving rights, it is always important that you be very clear on what those rights are and you ensure that they are properly recorded.

In the 2017 case of Lea v Ward the Court had to determine what rights Mr Lea had over Mr Ward’s land. There was no argument that a right of way existed and it was agreed by both parties that this was granted in 1979 by virtue of a Deed of Gift. The issue was that the plan annexed to the Deed did not identity certain points referred to within the Deed and did not indicate the width of the right of way. Over time, the track making up the right of way had changed. Mr Lea argued that his right of way extended to the whole width of the strip of land currently accessible. Mr Ward argued that the right of way was limited to the track discernible at the time the right of way was granted. Fortunately for the Court, there was sufficient evidence, including historic photographs of the land, for them to make a decision. They found that the right of way was limited to the track which had been available in 1979 and that, if the whole of the land was to be included, this would have been expressly included within the Deed or on the plan.

This case does go in to a lot more detail and the Court went on to determine other issues. However, the moral of the story is to be clear on exactly what you are agreeing and ensure that this is evidenced correctly in writing and on properly drawn up plans as the Court will not always agree that rights are implied or can be extended.

One case where the Courts did give a wider interpretation to the rights expressly granted was the case of Dickinson v Casillas which also took place in 2017. The circumstances of this case are very different. The land was owned by a developer who built a number of properties which were then sold on to various new owners. Mrs Casillas bought number 96 and Mr and Mrs Dickinson bought number 98. The transfer deed included a right for the owner of number 96 to enter the neighbouring property in order to maintain, repair and decorate their property. Mrs Casillas stated that this right extended to include the right to enter the neighbouring property’s driveway to inspect her wall and read her utility meters which were on this wall and could not be viewed from her own property. Mr and Mrs Dickinson refused her access stating that her rights did not extend this far. The Court of Appeal disagreed with Mr and Mrs Dickinson. They had different reasons for the two points in dispute.

Firstly, the Court decided that Mrs Casillas should be allowed access to inspect her property as inspection to determine whether or not works are needed is necessary in order to then carry out these works. The Court also pointed out that the dictionary definition of “maintain” includes the wording “keep […] in good condition by checking or repairing it regularly”.

The second point to consider was the need to enter the property to inspect the meters. The Court decided that the developer would not have put the meters in a place where the owner could not view them unless they had intended that the property owner would have the right to enter the neighbouring land to do so. The Court decided that the right of way should be extended to permit access for inspection and to read utility meters.

In this case Mr and Mrs Dickinson had to pay Mrs Casillas’ costs which were estimated to be in the region of £200,000! This type of case could be avoided if those rights are correctly included at the time they are granted. Of course it is very difficult to think of all possible eventualities but our Commercial Property team has many years of experience dealing with these kinds of situations. If you need any advice in respect of this or any other aspect of property then please do contact our property team to discuss this further.