Legal paths when access land is owned by somebody else
The Court of Appeal decision in the case of Gore v Naheed is a reminder of how difficult it can be to guarantee that a property does have the necessary rights of access or indeed other easements, such as for water supply or drainage, over land owned by others.
The decision depends on a range of variable factors such as whether the right is written in a deed or an agreement, if so the precise wording of it, and if not whether the right is provided for by statute or in accordance with case decisions of common law.
It is better to consider practical examples. Consider a farm drive which accesses the farm with two farm cottages, each with a large garden. One cottage is sold off and the sale deed simply says the cottage has a right of way to it. What happens if the owner of the cottage decides to build a bungalow in the garden?
If the use does not significantly increase the intensity of traffic over the drive then it is likely the bungalow can also use the access. If the wording of the sale deed had limited the use of the drive to access for a single private cottage then the bungalow would not have had right to gain access.
In the case of Gore v Naheed a right of way provided for access to a house called The Granary and its wording was “for all purposes connected with the use and occupation of The Granary.” The Granary owner purchased land beside the house and built a garage on it to serve The Granary. The Court of Appeal effectively held that provided the garage served The Granary, and The Granary and the garage were in the same ownership, then the wording of the easement allowed for this.
The court did not have to consider what would be the case if the deed did not refer to an access right. This is where an Act of Parliament may prove useful. Section 62 of The Law of Property Act 1925 may apply in that when a freehold property is sold it is deemed to have the benefit of then existing rights and easements. Another aspect is rights can be acquired by long use.
The nature of the right of way needs to be considered along with the extent of its use. If the right has been used for 20-plus years of agricultural use this is unlikely to support a building development for houses. The acquired right will have been for agricultural purposes and the change of use will almost certainly intensify the use of the track.
The law surrounding rights and easements is often complex to interpret. Access rights are generally valuable and if legal questions arise it important to raise this with a solicitor well versed in this subject.
Steven Corfield is a partner and agricultural specialist at Shropshire law firm, FBC Manby Bowdler LLP.
