Posted: Wednesday 30 May 2012
Can a right to enjoy a walk be a real right which binds the property?
By Hugo Allan, Head of Morton Fraser's English Property Team
It is an established rule of English law that rights of way for the betterment of a particular property across other land qualify as easements, and so as a valid grant of a right which binds successors in title. Recently the Court has had to decide whether a right of way could be constituted over a path which did not go anywhere. In essence, could a right of way exist to go up and down a path? The facts of the case are somewhat curious in that they relate to a specific path which was used to access a kitchen garden but to exercise the right of access to that kitchen garden one had to cross another parcel of land. The Court held this was a personal right, not an easement, and so not enforceable against successors.
Whilst the decision turned on the specifics a few points come out of this which have a wider application. Firstly, the Court of Appeal thought that rights to pass areas of ground for recreation could exist as easements and it might be possible that in certain circumstances the right to enjoy a walk may benefit a property, for instance for inspection.
Secondly, and more importantly, many developments are put together by assembling parcels of land in a jigsaw and this decision again highlights the dangers of assuming rights apply to all parts of the jigsaw, and not just the actual parcel they are granted in favour of.
In the assembly stages it is possible to create a dead end due to a missing piece of land not being finally acquired and this decision shows that such an arrangement can be challenged. This is in addition to the danger of assuming an easement which applies to one part of the jigsaw applies to the whole property which again can be challenged, as can altering the existing use of easements. What is clear is that in dealing with developments the use of options and a Deed of Grant once the jigsaw of parcels is in place is advisable (where possible), and one cannot assume that existing rights can be altered and changed to fit the development as desired in all cases.
So, whilst a right to enjoy a walk can be a real right, it will not always be so.
