Real Estate

Case Summaries: Rights of Way
17 August, 2017

Implied rights of way, s.62 and rights of necessity


Linvale Investments Limited v Christopher Eric Walker [2016] WL 03049957


Linvale purchased Orbital Business Park for £4,225,000.  The company planned to let the buildings on the property and re-sell it 2 years later for a profit of £2-4 million, depending on how good the tenants’ covenants were.  A company director of Linvale, Mr Walker, held a ransom strip in his personal name for taxation purposes.  This ransom strip also served as a fire escape route from Unit J1, a factory, on Linvale’s land.  The receivers of the property at Unit J1 claimed the factory had the benefit of a right of way over the ransom strip.


The factory had been vacant for around 2 years.  There was no continuous use of the escape route and a right of way could not be established using s.62.  Nor could the Wheeldon v Burrows requirement of ‘continuous and apparent use’ be met.  However, the court found that it was the intention of the parties that the factory would be let and the fire escape route would be used by the tenants as needed.  An implied easement was found based on the common intention of the parties.


Wood & Anr v Waddington [2015] EWCA Civ 538


The land in question was previously one farm which was sold off in parts.  The land was crossed with two tracks and two public bridleways.  The Woods claimed that they had the benefit of rights of way over two tracks.  Mr and Mrs Sharman (the Woods’ predecessors) had used the tracks on Mr Waddington’s land without any objection.


The court considered the track that led to the road first.  When considering s.62, the court held:  “what is important is the extent to which there are visible signs of a track or road.”  There was evidence that the track was visible on the day the land was transferred to the Sharmans and neighbours provided evidence that the track was used once a month.  The court held that this constituted a pattern of regular use and was ‘enjoyment’ for the purposes of s.62.


The court then considered a track that led to the public bridleway.  This was a hard track and was visible on the ground.  S.62 had not been excluded in the conveyance and it was held that:  “The grant in the written terms of a conveyance of a limited right will not exclude the operations of section 62 to confer a greater right than that which is contained in the conveyance itself.”  This is qualified by the fact that rights can be no greater than their predecessors in title.


Notices, obstruction and prescription


Trevor Winterburn, Elizabeth Winterburn v Garry Bennett, Lynne Bennett [2016] EWCA Civ 482


The Winterburns ran a fish shop and, along with their suppliers and customers, regularly parked in a parking lot owned by the Conservative Club Association.  Over a 7 year period the Club asserted on 12-15 occasions that it owned the parking lot and the Winterburns and their suppliers and customers had no right to park there.  The Club posted a sign, clearly visible to those entering their parking lot, which read:  “Private car park.  For the use of Club patrons only.  By order of the Committee.”  The entrance to the parking lot was subsequently blocked off, prohibiting any vehicular access.


The Winterburns claimed a right for themselves, their suppliers and customers to park vehicles in the Club’s parking lot.  The claim was based on acquisition by prescription by lost modern grant, which requires 20 years of uninterrupted user ‘as of right’.  This means that the parking lot was used without force, secrecy or permission.  The element of ‘without force’ was the issue in this case.  The court held:  “The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private … I do not see why those who choose to ignore such signs should […] be entitled to obtain legal rights over the land.”


Blocking access


Adam Stoddard Page v Convoy Investments Limited [2015] EWCA Civ 1061


Mr Page purchased 2 lots from a farmer at auction.  Both lots had the benefit of a right of way for agricultural purposes over the retained land that led to the public highway.  The farmer then sold the retained land to Convoy.  Convoy installed electric gates at the entrance to the roadway that required a fob or code to gain entry to its land and the right of way benefiting lot 1.  This obstructed Mr Page’s access to his land and he claimed the gates were a substantial obstruction to the reasonable use of the right of way.


The court agreed with Mr Page, despite Convoy offering Mr Page the code and a fob after installation of the electric gates.  The court found that:  “fobs and codes may be a convenient way of opening gates in a domestic context, but not being a farmer …”  When the lots were conveyed to Mr Page there were no practicable gates in use; therefore Mr Page is entitled to require Convoy to keep the gates open at all times.


Martin Harry Bradley, Rosemary Diane Bradley v Peter Greenwood Heslin, Marianne Heslin [2014] EWHC 3267 (Ch)


Two houses, No.40 and No.40A, originally belonged to one owner.  No.40 was sold off and eventually both houses changed ownership.  A right of way was granted to No.40 in the original conveyance over roughly 200 feet of the driveway so that the owners of No.40 could access their property with or without vehicles from Freshfield Road.


The Bradleys now own No.40 and regularly close the gates at the entrance of the driveway, which the owners of No.40A, the Heslins, claim is an obstruction to accessing their house.  The Bradleys claim they own the pillars and assert their right to close the gates due to proprietary estoppel (or alternatively, adverse possession of the northern pillar and under prescription or lost modern grant to close the gates).  The court agreed that No.40 owned the pillars, the southern pillar by the original conveyance and the northern pillar by adverse possession in 1992.


When the Bradleys close the gates over the driveway it is a trespass over the Heslins’ land, unless there is an easement.  The court looked at the intermittent use of the gates over time and held no right was acquired by prescription or lost modern grant.  The court held that the original owners’ relationship was bound by estoppel and therefore the Bradleys had a right to close and open the gates for all purposes connected with reasonable enjoyment of No.40A.  The court suggested closure of the gates from 11 pm – 7.30 am and installation of an electric gate operable from a vehicle.

Knot my problem
14 August, 2017

Japanese knotweed (“JKW”) is an invasive species which can cause physical damage to buildings and land.  It is very difficult to eradicate and affects the value of property, insurability and the ability to mortgage.


Until recently, it was considered that the owner of neighbouring land could not require the removal of the source of a JKW infestation from the defendant’s land.  Cases have only dealt with removal from the claimant’s land.  Now, the recent case of Williams and Waistell v Network Rail Infrastructure Limited (unreported Cardiff County Court judgment on 2 February 2017) has the potential to open the floodgates.


In this case, two bungalow owners brought claims against Network Rail (“NR”) for allowing JKW on NR’s land to spread to their properties.  The bungalows abutted the railway embankment owned by NR.  The embankment had been infested by JKW for 50 years which had persistently spread to the claimants’ land.  NR had been aware for some years that a danger was posed to the bungalows.  The claimants brought claims against NR in private nuisance.  Interestingly, the JKW had not damaged the foundations although it was claimed it had encroached onto them and prevented the ability to sell at proper market value.  The bungalow owners did not succeed in a claim for nuisance based on the encroachment, as physical damage had to be established.


However, the claim for nuisance by interference with the quiet enjoyment/use of the properties was successful.  The court held that if the ability to dispose of property at proper market value is infringed then that is a blight upon the property and there had been a nuisance for which damages could be awarded.


The court considered that NR did know or ought to have known the state of affairs giving rise to the nuisance and that damage was foreseeable.  Despite this, they had delayed treatment of the JKW on its land and when they did treat it was insufficient.  The court held their actions were not reasonable and NR were liable.


The court would not grant a mandatory injunction to require the defendant to eradicate the JKW on its land but did allow damages for diminution in value, to treat the claimants’ land and for general lack of amenity.


NR tried to claim to have a prescriptive right to cause that nuisance given that the JKW had been there for 50 years.  Although possible in principle, this failed as there was no evidence that there had been actual nuisance for over 20 years.


The case is important because it is the first decided claim for damages arising out of JKW on a neighbour’s land.  It also shows that there can be an actionable nuisance before physical damage is caused because of the effect on value of land.  It is now being appealed and so, if it is upheld by the higher courts, it may open the floodgates for neighbouring properties to JKW to bring claims, particularly those within 7m of JKW where mortgage lenders will not usually lend.


We’ll be keeping a watchful eye on the outcome of the appeal.

Why WeWork?
28 July, 2017


If you read the property press you can’t help but have seen the rash of news about WeWork in recent weeks. The co-working operator are reported to be in negotiations to open in Hammersmith, have announced a major pre-let at Two Southbank Place in London (the largest letting deal in the market this year at 280,000 sq ft), and also confirmed they are to open their first office outside London in Manchester. So who are they and what does this tell us about how office tenants are changing?


This time 18 years ago I had just taken my Sociology A-Level and a large part of our course looked at how the world of work was likely to change in our lifetime. Whilst the predictions of everyone ‘teleworking’ from home and the rush hour becoming a thing of the past haven’t materialised (a big disappointment for those of us who commute on the Pembury Road), there is a definite trend towards more flexible working, and this has had an impact on how office space is used.


The cost of renting or owning an office is high, and the concept of having a desk for every employee is becoming outdated. Research has shown that around 30% of desks in an average office are unoccupied each day, either through employee absence or because workers are out at meetings or working remotely elsewhere. The cost of having an office that can accommodate all your workers when they are rarely all in has lead businesses to implement hot desks (where no-one has a designated desk) or shared desks (where employees, particularly, part timers share the same space). One of the largest office furniture suppliers in the USA has recently developed technology to allow employers to monitor how each workspace is used via sensors in the desk and chair. A little Big-Brother-esque, these allow bosses to check how many hours a day the chair is actually sat on to determine whether an employee really requires a dedicated workstation. Or a job at all, one wonders.


For smaller companies, especially those starting out, the expense of having an office in a city location may be well out of their reach. This is where companies such as WeWork come in by taking leases of large office buildings and renting them out, either on a desk-by-desk basis or by breaking the space down in to smaller offices to rent. All the practicalities of running a business day to day, such as high speed internet, printers, and kitchen and toilet areas for staff are taken care of in the monthly fee, and meeting rooms and break out areas are provided. Space is rented by the month, allowing businesses to expand (or contract) with their markets and give a growing company a presence in an area they would otherwise be priced out of. For individuals or small businesses the networking opportunities with other occupiers are also a big plus.


With flexibility being a key concern for business in these uncertain economic times, it’s not hard to see why WeWork is such a success story. Even if it does mean we are stuck with the rush hour commute for a few more years.

The Queens speech 2017 – What does it mean for the property sector?
25 July, 2017

The Queen’s Speech, which was delivered on 21 June 2017, set out information on legislation which the government intends to carry over into, or introduce, over the course of the next year.

Below are a few key points worth noting for the property sector.


New Bills of interest


(1) Draft Tenant’s Fees Bill


This proposed new bill, which was part of the pledge made by the Government in the autumn statement, will impose a ban on letting agents charging upfront fees to tenants on residential lettings fees. It is proposed that the Bill, once introduced, will ban landlords and agents from requiring tenants to pay letting fees as a condition of their tenancy, and will introduce measures to enforce the Bill with a provision allowing tenants to recover unlawfully charged fees. The ban would not include rent, a capped refundable security deposit and/or holding deposit and tenant default fees. Holding deposits would be capped at one week’s rent and security deposits at no more than one month’s rent. The aim of the Bill is to increase competition in the private rental sector, to reduce upfront costs for tenants, and to deliver on the manifesto commitment made by the Government to ban letting agent fees and make renting fairer and more affordable for millions of tenants. The ban would apply to England only, however it will include some minor amendments to the Consumer Rights Act 2015 which may apply to England and Wales.


Whilst this will be welcome news for tenants, it will undoubtedly cause concern amongst both landlords and letting agents, and will inevitably result in increased litigation in an already heavily litigated area.


 (2) High Speed Rail (West Midlands – Crewe) Bill


 A new bill, the High Speed Rail (West Midlands – Crewe) Bill, will be brought forward to provide the powers to build and operate the next stage of the HS2 railway line from the end of the Phase One Route at Fradley to a junction with the West Coast Main Line just south of Crewe. The main benefits of the Bill will be to allow cities in the north of England and Scotland to enjoy the increased capacity, improved connections, economic benefits and reduced journey times sooner by accelerating the building of a connection to Crewe, to free up space on our existing rail lines and generate jobs, and to fulfil the manifesto commitment to “continue our programme of strategic national investments”. The extension is scheduled to open in 2027 at a cost of £3.5 billion.


 Other relevant proposals:




The speech included a pledge to build more homes in the right places to help tackle the increasing lack of affordability, slow the rise in housing costs relative to the rise in wages and help “ordinary working families” to buy an affordable home and bring the cost of renting down. This came off the back of the Housing White Paper published in February 2017 which proposed end-to-end action across the whole housing system


Leasehold reform


The speech highlighted the latest figures for leasehold properties, and signified an intention on the part of the Government to launch a consultation on leasehold reform, and to work with stakeholders to promote transparency and fairness for leaseholders. The focus of the reform will be on ground rent and the sale of leasehold property.


Grenfell Tower Fire


On 15 June 2017 the Prime Minister announced a full public inquiry into the circumstances behind the fire which broke out in Grenfell Tower. The speech provided specific details regarding this inquiry, including how it will be conducted, the individuals who will be consulted and the details of publication.

The electronic communication code – an end to “nomophobia”?
22 June, 2017

What does the Motorola DynaTAC 800X and an iPhone 8 have in common?  On a technology front, very little.  However, they were both released in landmark years for the telecommunications industry.  The Motorola in 1984, the year the Telecommunications Code (part of the Telecommunications Act) came into force to govern the relationship between landowners and telecoms providers wanting to put equipment on land.


Apart from minor amendments to the code, in 2003, it has remained unchanged while the telecommunications industry is unrecognisable.  The iPhone, expected the be released in 2017, is an example of how much technology has changed.  However, one only has to look around to see how dependant the world is on mobile phones which is driving a demand for greater network coverage by telecoms operators/providers.  That, in part, has resulted in the government introducing a new Electronics Communication Code (as part of the Digital Economy Act) which will come into force later this year.  Perhaps this will herald the end of “nomophobia”, a fear of being out of mobile phone contact.


The new code deals with how telecoms operators/providers are allowed to install and maintain electronic communications apparatus on public land.


As lawyers, we can deal with new formalities for documenting the code but there are some interesting points for both providers and landowners to bear in mind.


  • Leases/licences or any agreement within the code will not benefit from security of tenure under the Landlord & Tenant Act 1954.
  • Code rights will bind new owners of land, even if leases/agreements are not registered at the Land Registry.
  • The Code gives operators the right to share sites with other operators and/or assign rights without a landowner’s consent.
  • Operators will be able to upgrade installations under the Code (subject to upgrades having an adverse visual impact or additional burden on the land).
  • Rents paid by providers/operators are likely to fall.  Rent will be calculated on the basis of the land/site’s value to a landowner (not the operator).
  • Consequently, it will be less attractive for landowners to rent out roof space to telecoms providers/operators but the court can impose a code agreement on a landowner.
  • Landowners should therefore try and conclude negotiations under the existing code as soon as possible for the current valuation methodology to apply.
  • There is a two stage approach to terminating an agreement and getting equipment removed which initially requires a minimum 18 month termination notice.  Landowners will need to plan ahead.
  • Once an agreement is terminated (which will involve court proceedings) a further notice is required before the removal procedure under the code can be implemented.  Unless the removal procedure is followed, no possession order will be made.


The above is of course very broad brush but the take home message is that the new code is very much in favour of operators/providers in a bid to facilitate the continued growth of the technology sector.  Under the Digital Economy Act, Ofcom is required to produce a code of practice to accompany the Communications Code and a consultation on that finished on 2 June.  Once that code of practice is finalised, it will be interesting to see how operators in practical terms are likely to utilise the provisions of the new Communications Code.

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