The Importance of a Lasting Power of Attorney
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Saul MarineA right of way is a type of easement that is likely to affect everybody in their day to day life. For example, a road or path that allows a person to pass over another’s land. ‘Dominant land’ is the typical term used for the land that benefits from an easement and ‘servient land’ is the term used for the land suffering from the right of way. Disputes often arise between landowners where informal agreements have been relied upon regarding shared driveways and pathways etc.

 Pezaro and another v Bourne and another [2019] EWHC 1964 (Ch)

property fightingPezaro and another v Bourne and another [2019] EWHC 1964 (Ch), a recent decision in the High Court, highlights the importance of registering informal agreements regarding rights of way between landowners. This is crucial in order to protect your interests.It was held by the Court in this case that a right of way was not removed on the grounds of proprietary estoppel when a previous owner of the dominant land verbally agreed to its removal.

A right can be established under proprietary estoppel if a person has been given an assurance that they will acquire a right, this is relied on to their detriment and it would be unconscionable to go back on the assurance.

In this case, the right of way (a pathway to the rear of two properties A and B and alongside one property C) was registered on all three of the titles. The owner of properties A and B wished to build a house over the right of way, and thus, there was a verbal agreement between him and the owner of property C to extinguish the right of way. He preceded to obtain planning permission but did not apply to the land registry until after this has been obtained. By this time, the owner of Property C had sold his land. The new owner claimed the benefit of a legal easement over the right of way.

The owner of properties A and B claimed that the right of way had been removed on the grounds of proprietary estoppel. The Court found that although there may have been grounds for proprietary estoppel, under the Land Registration Act, section 29, a purchaser for valuable consideration is not bound by an interest unless the interest is protected through registration under section 29(2). Therefore, the informal agreement was not legally binding and the right of way still exists.

This case demonstrates the difficulties that can arise when informal agreements are not put in writing and notes the importance of registering any agreement with the Land Registry. If the agreement had been protected, the purchaser’s valuable consideration would not have taken priority over the interest and thus, the right of way would have been extinguished. It also makes evident the binding force of the registered title.

Long use

A person can acquire a right as a long user, this is known as prescription. A person must have continued use of the land for at least 20 years in order to establish a right of way by prescription. The use of the land must be without force, without secrecy and without permission, resulting in the use being ‘as of right’.
The Court of Appeal clarified the definition of ‘without force’ in Winterburn v Bennett [2016] EWCA. Here, the landowner put up signs stating that the land was private and to be used by customers only. It was held that the claim for an easement by prescription was prevented by the clear signs and that there was no other obligation on the owner to clarify its position.

Express Right of Way

A right of way through agreement is where landowners come to an agreed use of the land. An express right of way over registered land will only create a legal easement once it is registered against  the title of the land that is affected, the servient land.

If the landowner of the dominant land applies to register the right of way the registrar will automatically put a notice on the register of the servient land. If this is not performed, then the right of way will not legally bind the landowners and it will take effect only in equity. This reduces the security of interest of the parties involved.

The landowners can agree restrictions which limit the use of the land. For example, making a pathway for bicycles only, or conditions on its use such as, only allowing its use at certain times of the day. Once the landowners have made an agreement and if the land is registered, the agreement should be registered on the title.

The case of Brooks & Anor v Young & Anor [2008] EWCA Civ 816 demonstrates the importance of expressing your intentions clearly when registering a right of way. Here it was determined that plain language should be used when drafting, which gives effect to party intentions expressing any restrictions in proper terms. If this is not done, the restriction or condition will have no effect. The Courts job is to determine what parties mean using the wording used on the title, and not interpreting surrounding circumstances, it is interpreted in a restricted way.

Therefore, when coming to an agreement with another landowner, such as your neighbour, it is important to discuss the use of the land in full and think about all aspects and anything that could affect your enjoyment of the land to reduce the likelihood of disputes in the future.

Overall, the importance of registering a right of way is evident, along with the need to express fully a mutually agreed right. If neighbours are going to live in harmony and you want to secure your interests with no disputes, write it down.

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