The law’s an ass, or so the saying goes.
Often, as lawyers, we have the unenviable task of explaining to a client why the law in relation to a particular set of facts still applies, entirely regardless of the fact it might feel unfair or “not quite right”.
There has been another good example of this in a recent court case concerning rights of way (or “easements” to give them their legal terminology).
The Facts in Pezaro v Bourne
The case concerned a small terrace of properties, with a right of way passing along the end of the back gardens and then up the side of the end of the terrace to a road; a not uncommon arrangement with terraces.
The owner of the property at the far end of the terrace (number 147) was, for a long time, Mr Ayres. Numbers 149 and 151 later became owned by Mr & Mrs Pezaro.
Mr Ayres had a right of way, granted by Deed, over the back gardens of numbers 149 and 151. He never once used it though; it was a relic from the 1960s, a time long before Mr Ayres began living at no. 147.
As a result, a previous owner of number 149 had erected a fence that effectively “blocked off” the right of way. There was no objection by Mr Ayres – he didn’t care as he never intended to use the right of way.
In 2004, Mr Ayres sold a bit of his back garden to Mr & Mrs Pezaro, so that they could develop part of the gardens for numbers 147-151. This included most of the land over which the right of way passed.
So, to summarise, by 2004 there was a right of way in favour of Mr Ayres’ property that:
By early 2010, Mr & Mrs Pezaro were intending to build a new property alongside number 151. At this stage they learnt that the 1960s right of way was in fact still, as a matter of law, effective. It needed to be “removed” formally, in writing, for their verbal agreement with Mr Ayres to take full effect.
They contacted Mr Ayres. He told them he assumed it had been removed when the gardens were sold and that he was quite happy to do whatever needed to be done to formalise the legal position. Unfortunately for Mr & Mrs Pezaro they didn’t press on with that plan straight away….
No prizes for guessing what happens next….
Unbeknown to Mr & Mrs Pezaro, Mr Ayres sold his house in the summer of 2010. By the time Mr & Mrs Pezaro came to do something about tidying up the issue with the right of way, in the summer of 2011, number 147 was now owned by Mr & Mrs Bourne.
Mr & Mrs Bourne were approached by Mr & Mrs Pezaro to see if they would complete the legal documents needed to put into effect what Mr Ayres had previously agreed to. Mr & Mrs Bourne however were not prepared to do this; they had the benefit of the right of way and they weren’t prepared to give it up, as it was their right.
The case before the court turned on detailed points of law. In simple terms however, whilst Mr Ayres agreement would probably have been binding upon him, it was not binding upon Mr & Mrs Bourne. They were new owners of the land, they had not been party to any of the previous events, and they were entitled to rely upon the full extent of the legal rights granted to them by Deed.
What Could Have Been Done Differently?
If in 2010, when Mr Ayres was contacted to see if he would formalise the position, good property lawyers had become involved, then the entire (expensive) court case that followed would have likely been avoided; Mr Ayers would have been asked to sign one document to confirm the release of his rights, that document would have been registered at the Land Registry, and that would have been the end of things.
People often feel they are saving money by not seeking legal advice at an early stage. Sometimes of course they are right. But often one only finds out many years down the line whether or not that truly is saving money. Often when things do go wrong the cost of putting it right – if it can be put right at all – will be tens or even hundreds of times more expensive than the cost would have been in the first place.
Our property team have many years’ experience in dealing with issues arising from developments and easements, and are well placed to advise you at an early stage in matters. Their involvement will nearly always prove more cost effective than becoming engaged in court proceedings years down the line. If you would like to speak to anyone about any of the issues raised in this article please contact Daniel Edwards.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.