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Easements - what is "necessary" to obtain access to a property?

Monday, 24 April 2017

The Court of Appeal has recently, in the case of Shaw v Grouby and another [2017] EWCA Civ 233 (06 April 2017 had to consider the extent of a right of way that was granted so far as it was "necessary" to gain access to the property.


The property (Property) was one of three houses that had been built in the grounds of a manor house, and there was a long driveway between the public highway and the manor house, which formed part of the manor house’s title.


The original transfer of the Property included a right of way over the entirety of the driveway as follows:


"To pass and repass at all times and for all purposes over and along so much of the private driveway edged green on the said plan as is necessary to obtain access to the Property..."


A wooden fence was erected along part of the boundary of the Property which bordered the driveway, and a gap was left in the fencing to allow access to the Property (Access A). This fence was subsequently replaced with a wall with a gate in it for access to the Property (Access B), the position of the gate however was not the same as the gap in the fence had been.


The owners of the manor house claimed that the right of way in the transfer limited the access point to Access A. The owners believed that the right of way was limited to what was physically necessary to obtain access to the Property at the date of the grant and because there was an existing access point, it was not necessary for the owner of the Property to move the access point.


The owners of the Property, however, argued that the right of way granted access to every part of the Property that abutted the driveway, meaning that they were entitled to use Access B.


The Courts found that what is necessary should not be construed by reference to a fixed point in time, such as at the date of the grant. This meant that the interpretation of what is "necessary" could vary from time to time during the existence of the grant, and would permit the use of different points of access from the driveway to the property. Therefore, they concluded that if the intention had been to limit the right of way to a particular and fixed point of access, the transfer would have expressly stated that.


This case highlights the importance of having a good understanding of any parameters (such as: the physical extend of the easement; the purpose and manner of use; and any limitations on use) that are imposed in relation to the easement, as it easy to wrongly assume the status of the situation.


It is also a reminder that access points may not always remain in the same position, depending on the wording of the right of way. It may be worth getting some legal advice if you are concerned about your rights or your neighbours’ rights in relation to an easement. Please contact a member of the Property Dispute Resolution team if you require assistance - PDR@daviesandpartners.com

 

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