Sheep on a moor with a homestead in the distance

Rights of way: The need to check what is actually granted

It is relatively commonplace for rights of access (easements) to be granted by rural landowners, especially when properties are developed and split up into several separate dwellings or parcels. The recent High Court decision in the case of Weaver v Smith [2023] EWHC 1200 (Ch) considers the construction and interpretation of deeds of easement and highlights the need for the parties to understand exactly what is granted before the deed is signed.

Background

The claimant, Mr Weaver (Claimant), owns Cwymclydach and Ms Smith (Defendant), owns the neighbouring land, Blaenclydach. The dispute concerns a deed of easement made between the Claimant and executors for the former owner of Blaenclydach(Executors). The Defendant had bought Blaenclydach subject to the terms of the easement.

The case

The deed granted a right of way for the Claimant across the Defendant’s land. The Claimant claimed the accessway extended to the highway beyond the Defendant’s land, whilst the Defendant argued it stopped at a point in the yard,(Point A) halfway between an adjacent gate and the highway.

Decision

HHJ Jarman KC considered the intention of the parties, and what a reasonable person with all background knowledge available to them would have understood the language in the deed to mean in the context of the physical features of the land at the time.

He noted that “accessway” indicates an intention to obtain access to or from something (rather than stopping in the middle of a yard), and a covenant to close gates on the accessway after use was relevant as “the ordinary meaning of the word “use” in respect of a gate is to go through it, rather than open it but not to go through it”.

He explored the possibility of a private arrangement covering Point A to the highway, but as the Claimant released any existing rights in the deed, this would extinguish any such arrangement.

He concluded that considering  the wording of the deed as a whole and the context of the physical features on the ground, a reasonable reader would conclude that the parties intended the rights granted to extend to the highway and not stop at Point A.

If incorrect on construction, he stated he would accept the Claimant’s request for rectification of the deed, given the correspondence between the solicitors and their clients produced to the courts, which clearly made reference to the right of way being to the road.

The solicitor for the Executors also stated to them that the deed would document the access as per a Statutory Declaration by a previous occupier of Cwmclydach, referring to access being to the road.

The Executors suggested their solicitor had failed to explain the extent of the deed to them, but HHJ Jarman held this was not supported by the correspondence presented to the court, which showed he had acted properly; the Executors were eager to complete the sale and benefit from their inheritance and this is more likely to have caused any misunderstanding.

Lessons from this case

This case reminds landowners to ensure when entering into agreements that the language is clear and reflects their intentions. It should also reflect the context of the land and take into account any physical features, historical use and declarations by previous owners.

It is also a reminder to read documents thoroughly to ensure they are understood before signing, rather than rushing to complete a deal – this will avoid misunderstandings or ambiguities going forward.

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