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Rights of Way: Whether a property benefited from a right of way where a covenant to erect fencing existed (Browning and another v Jack and another – 2022)

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Where an application is made for registration of an easement in respect of access over a neighbouring property, can an easement exist where a covenant has been entered into requiring the erection of a hedge or fence despite access having been enjoyed for many years?

The background

In Browning and another v Jack and another [2022], the appellants applied for registration of an easement in respect of a right of way to benefit their farm (LCF) and crossing over a neighbouring property (HCF). LCF, comprising a cottage and farmland, was formerly part of HCF’s land.

In a conveyance of the LCF cottage in 1994, rights were reserved in favour of the retained HCF land in a provision which stated that a right of way enjoyed over HCF farmland and across LCF’s land to the public highway was to be extinguished and not reserved to HCF for the benefit of retained land. A track ran from Bethany Road, to the north of HCF’s land, through HFC and to LCF’s northern boundary, and then across LCF to the A38. The appellants, who bought LCF in 2006, stated that LCF benefited from a right of way over the track to the north of their land, across HCF and leading to Bethany Road. The track had been used by the appellants’ predecessors in title since 1994.

In their application to the First-tier Tribunal, the appellants claimed that an easement was created over the track on HCF’s land in 1994 and passed to them by the established principle that continuous and apparent easements necessary to the reasonable enjoyment of the property and used by the owner of the property passed with the title to the property.

Further, the appellants referenced a deed of gift of LCF farmland dated 1995, again stating that this land was transferred together with (inter alia) rights and easements enjoyed by it.

The FTT found in favour of the respondents and concluded that no easement had been created for the benefit of neither the LCF cottage nor the farmland. The court cited a covenant in the 1994 conveyance which required the purchaser to erect a hedge or fence across the boundary which would block the access track, making this inconsistent with an intention to create a right of way.

The decision

The Upper Tribunal set aside the FTT’s decision and directed the Land Registry to effect the appellants’ application for registration of the easement.

The appellants argued that the fencing covenant could still be performed with erection of a gate across the access track, consistent with grant of an easement. They stated that the right of way had been continuously enjoyed for the benefit of LCF, was necessary for reasonable and convenient enjoyment of the LCF land and was not inconsistent with the 1994 conveyance. However, the UT disagreed on the point regarding the gate; the fencing covenant appeared to indicate a desire to deliberately cut off the access to the track and therefore no implied easement. The appeal failed on this point.

In considering the 1995 deed of gift, the UT reached a different conclusion. At the time the deed was completed, the access track was in use by the appellants and the fencing covenant contained in the conveyance had not been triggered. In the absence of any expressed wish to the contrary contained in the conveyance, as required by s.62(4) of the Law of Property Act 1925, an easement was created.

The FTT had erred in law, and the decision set aside. The easement was permitted to be registered.

Advice and action for landlords

This is a useful decision in the application of s.62 LPA 1925, and a word of warning to property owners, landlords and developers that, where an express contrary intention is not made, s.62 may be applied such to create an easement capable of registration, particularly where an easement has been enjoyed for years beforehand.

Parties are, as ever, advised to ensure that documents are thoroughly drafted and sites assessed to ensure that potential easements and rights of way are closed off where needed, albeit requiring negotiation with parties who may well benefit from such rights.

The Upper Tribunal set aside the FTT’s decision and directed the Land Registry to effect the appellants’ application for registration of the easement. Although the fencing covenant prevented creation of an easement, a lack of express intention to the contrary in documentation allowed it.

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