Benefiting from a burden and a costly mistake

A recent case held that a right of way benefited a piece of land despite not being expressly granted for its use, because the land was later made subject to a covenant to contribute to the cost of its maintenance.

The court also found that a covenant preventing the land from being built on could not be enforced because it was incorrectly noted on the title at the Land Registry.

The case of Roberts v Parker [2018] came about because of Mr Roberts' desire to develop some adjoining land (which was a separate parcel of land from his house) and the need to establish that the whole of the site therefore benefited from a right-of-way over a private road belonging to a neighbour. He also faced the issue of whether he was bound by a restrictive covenant not to build on the land in question.

There were two points to decide in relation to the right of way. Initially a right over the private road had been expressly granted for the whole of the site in 1923, but when the house was sold in 1950 the conveyance expressly prohibited the owner of the adjoining land from using the road.  The Court decided that this meant that the owner of the adjoining land had ‘abandoned’ the right and it no longer existed.

However, in 1968 the house was sold back to the owner of the adjoining land and the conveyance contained the right to use the private road “for all purposes connected with the present and every future use of the land hereby transferred”.  Although the conveyance didn’t include the adjoining land, the conveyance also contained a covenant “to the intent that the burden of this covenant may run with and bind [the adjoining land]” to pay half of the cost of maintaining the private road.  The Court decided that to make sense of this covenant, the right had to extend to benefit the adjoining land. 

The covenant prohibiting building on the adjoining land was also contained in the 1968 conveyance, which was referred to on the claimant’s title. Unfortunately the title set out the covenant with reference to “land edged green” but also included a note to the effect that the land edged green did not affect the land in that title, which was clearly a mistake. The Court held that the covenant was therefore incorrectly noted on the title and as a result was unenforceable and did not bind the adjoining land.

This case once again reinforces the importance of clear drafting, but also attention to detail when it comes to registering documents and checking the updated titles following registration.  Our experienced Commercial Property team are used to dealing with these situations.  If you are considering granting a right of way or perhaps selling land which is subject to a right of way please do not hesitate to contact us on 0161 941 4000 or email us at lawyers@myerson.co.uk.