Easements and Rights of Way: They Don’t Always Last Forever!

Easements and Rights of Way: They Don’t Always Last Forever!

KEY ISSUES

When dealing with rights of way or grants of easements, it is important to check:

(i)             when the right/easement was granted; and
(ii)           that the right is still valid.

Failure to exercise a right within the relevant period (depending on when it was granted) will result in it being extinguished.

There are three rules which apply depending when the right was granted:

(i) Rights granted pre 16 July 1964 – for a right to be valid it had to be granted to take effect within the common law perpetuity period (usually 21 years after the death of an identifiable person, often the monarch). If the right did not take effect within this period or there was a chance that the right would/will come into effect after the perpetuity period has ended, the right will be void.

(ii) Rights granted between 17 July 1964 and 5 April 2010 – a ‘wait and see’ test is applied. If the right takes effect within the perpetuity period (set at 80 years) it will be valid. If it does not, the right will be void.

(iii) Rights granted from 6 April 2010 onwards – the rule against perpetuities was abolished with effect from this date. Any rights granted after this date to take effect in the future are not subject to any restrictions and will exist indefinitely.

  

Magrath v Parkside Hotels Limited [2011] EWHC 143 (Ch)

This case highlighted the need to check that any rights of way granted before 6 April 2010 are still valid and have not been invalidated by the rules against perpetuities. Any rights of way granted after 6 April 2010 will be unaffected as the rule against perpetuities was abolished with effect from this date. The case shows that even rights of way which have been formally documented can be challenged and it is therefore essential to check that any right of way granted is valid.

The case concerned a dispute over a right of way used as a fire escape between the owners of mews properties in London. In 1947 the owners of the properties entered into an easement granting mutual rights of fire escape over each others properties and mutual ancillary rights to renew or alter existing staircases and erect new ones. The rights were granted in the form of a deed which was duly registered at the Land Registry.

Over the years the properties were altered to the extent that the original escape routes no longer existed. In 2002, the claimant became the registered owner of one of the properties and following a letter sent by the defendant to the claimant seeking to impose unreasonable requirements on the claimant to provide and maintain the escape route, relations between the parties deteriorated. The result was that the claimant took proceedings to deny the existence of any right of the defendant to the escape route. The claimant sought a declaration that the 1947 easement was void and unenforceable on the basis that the rule against perpetuities applied as there was no requirement for the easement to take effect by a certain time.

The rule against perpetuities is such that where a right to acquire a future interest in an asset, such as a right of way over a property, is granted, the right must take effect within a defined time (the perpetuity period) which varies according to when the right was granted. If the right does not take effect will this time then the right will be invalid and effectively there will be no right in existence.

The High Court decided in favour of the claimant on the basis that none of the original staircases remained in existence and the rule against perpetuities applied to the grant of an easement as in this case such that it had to be exercised within the perpetuity period (being 21 years after the death of a determinable person alive at the date of grant). This meant that it was legally impossible for the defendant to alter the route of the staircases as the easement contained in the 1947 deed was not time limited to take effect with the perpetuity period but was expressed as an easement which would arise at an uncertain date in the future.

It is important to check:

• When an easement was granted; and
• If the right is time limited

Otherwise the easement/right may be subject to the rule against perpetuities and be deemed void to the extent that the right never existed. For any easements granted after 16 July 1964, the rules are simplified in that if the right is not exercised within 80 years from the date of grant then it will be void. On 6 April 2010, the rules against perpetuities were abolished for any rights granted after that date which may take effect at a future date.

 

If you would like to know more, please contact Vanessa Joll, Head of Property Disputes, by emailing Vanessa or by calling her on 08450 990045, or speak to your usual contact in the Property Disputes Team.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

19 August 2011