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Rights of Way to Landlocked Properties |
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Sweet v Sommer
Obviously, the rights benefiting a property can often be as important as the property itself.
If a property does not adjoin the public highway, it will need to have the benefit of a right of way to cross bordering land. Ideally, this right will have been given by an express grant by the owner of the land, however, this is often not the case. Where part of a property is sold, the Court may imply the creation of a right of way over either the land sold or the retained land on the basis that the grant of such a right is 'necessary' to avoid land becoming locked.
Over the years, the Courts have tended to limit the creation of such rights to situations where it is absolutely necessary, sometimes creating harsh results. In Sweet v Sommer, however, we may be seeing a relaxation in this approach.
Facts
The case concerned land sold in 1988. The conveyance by which the land was sold contained no express right of way across the retained land to reach the adjoining land. The mistake went unnoticed for several years, but when it came to light, the owner of the retained land argued that no right of way could arise as any implied right must be limited to what was strictly 'necessary'. Vehicles could have accessed the adjoining land from the highway if a workshop was demolished. There was also a pedestrian right of way to the adjoining land. Technically, therefore, the adjoining land was not landlocked. Accordingly, the owner of the retained land contended that there was no absolute necessity to imply the grant of a vehicular right of way when a pedestrian right of way already existed.
The Decision - Rights of way will be implied even if land is not totally inaccessible.
- With our greater dependency on cars, it seems the Courts are more prepared to decide that a property will not be 'useable' without vehicular access
- It is of course always best to ensure that on the sale of part of a property, all necessary rights are granted.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2004. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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November 2004 |
