A failure to document….

The Claimants owned two residential properties at 149 and 151 New Street, Andover. A strip of land at the rear of the properties was subject to a right of way in favour of a neighbouring property, no.147 New Street, originally owned by Mr Ayres. The right of way had not been used for some time and, in fact, had been blocked by fencing on the Claimant’s land.

The Claimants wished to carry out development of a fourth house to the side of no.151 and reached an oral agreement with Mr Ayres that the right of way be extinguished. However, no steps were taken at the time to remove the right from the Land Registry titles.

Some years later the Claimants secured planning permission for their development and at this stage contacted Mr Ayres to arrange for the removal of the right of way from the titles. By this time Mr Ayres had sold his interest in no.147 and the new owners, the Defendants, were unwilling to agree to the removal of the right of way because they had reconfigured no.147 to make use of the right of way.

The Claimants applied to the Court for a determination that the right of way had been extinguished. They argued that they had acted in reliance upon the agreement with Mr Ayres such that a proprietary estoppel arose and the Defendants, as successors in title to Mr Ayres, were now unable to enforce the right of way.

Proprietary estoppel is a doctrine based on representations by words or conduct which amounts to a statement about the future enforcement of legal rights.

The Court confirmed that Mr Ayres may well have been estopped from enforcing the right of way and that such estoppel was potentially capable of binding successors in title by virtue of s.116 of the Land Registration Act 2002. However, the agreement with Mr Ayres had not been protected by registration and the right of way remained registered. Therefore, to succeed in their claim, the Claimants would need to demonstrate that they were in actual occupation of the right of way at all times and that the Defendants had notice of this (s.29 and schedule 3 paragraph 2 of the Land Registration Act 2002).

The Court concluded that while there might have been an obstruction in the form of a fence and two gates, unless the obstruction was permanent - such as where the right of way had been built over – the Court should not treat the Claimants (who no longer lived in their property) as being in actual occupation of the easement. Master Teverson stated that:

“…….in the case of an easement over the Claimant’s own land the court should be cautious before finding that it is in the actual occupation of the servient owner. The servient tenement is not part of the land which will be inspected or viewed before purchase”.

Master Teverson also rejected the Claimants’ arguments that their planning application notice affixed outside of no.147 should have provided sufficient notice of their actual occupation of the easement.

Accordingly, the claim that the right of way had been extinguished failed.

Comment

The case provides a cautionary tale for developers. Had the Claimants arranged for the right of way to be removed from the Land Registry title as soon as they reached agreement with Mr Ayres no dispute would have arisen.

The delay in taking steps to have the right of way removed from the register exposed the Claimants to the risk that their unprotected and unimplemented agreement with Mr Ayres ceased to be enforceable against successors in title who acquired their interest in no.147 by virtue of a registered disposition when the benefit of the right of way remained registered on the title.

Pezaro & Anor v Bourne & Anor [2019] EWHC 1964 (Ch)