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Two adjoining properties had mutual rights of escape (ie each benefited
from a right to escape across the other). But, the wording was slightly
different and one had a right of escape which was subject to provisos that
(i) the roof and external staircase continued to exist, and (ii) it was the
right of the other property owner to change the route from time to time.
What happened in due course was that the owner of the other property
removed the external staircase, prior to planned redevelopment. The CA
held that the removal of the staircase meant that the right of escape was
abolished, and there was no obligation to provide an alternative means
of escape given the wording of the documentation.
Clearly, this case decides nothing new and it merely illustrates how
sloppy drafting can lead to subsequent disputes. The way to avoid such
difficulties is to make sure that the documentation fully sets out the
circumstances in which a right of escape (and structures – such as the
staircase) can cease to exist and what the effect of that will be. In
practice, courts will usually try to work out the surrounding
circumstances at the time of the original grant, but they will not impute
motives or look at pre-contract negotiations; accordingly, consider
recording why a provision is worded in a particular way (eg in this
instance, it was probably because it was anticipated that this particular
property was likely to be redeveloped and thus the staircase would
eventually be demolished). Also, if it is intended that there should be no
subsequent right of escape then say so (ie specifically remove any doubt
as to whether there is an implied right to an alternative means of
escape). Megaro v Di Popolo [2007] EWCA Civ 309. Source:
www.practicallaw.com (subscription service).
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April 2007 |
