The Necessary Rights Which Will Enable You To Own And Occupy Your Home Or Develop Your Site

If you are a buyer of a new property, a building plot or a development site, you must ensure the transfer to you contains all the necessary rights which will enable you to own and occupy your home or develop your site. If you fail to secure all necessary rights on your purchase, the courts will be reluctant to ‘imply’ such rights following completion. And as a buyer, you may face a ransom situation.

Typical rights which a buyer might need are

· Rights of way over roads and accessways
· Rights to lay and connect into the usual utilities
· Rights to lay and connect into drainage systems
· Rights to park.

The absence of a necessary right was faced by buyers in the case of Donovan v Ai Ashgar Rana [2014].

In this case, the seller owned a property in Kent within a suburban residential area. The seller sold a plot of land adjoining his home as a building plot with an express right of way over the ‘Blue Land’ that formed part of the seller’s retained land. The Blue Land was a small area which separated the building plot from the highway. It was always intended to be a ransom strip to protect against further development of the building plot.

In the transfer to the buyer, the buyer covenanted to build a dwelling house on the building plot within 12 months and to the satisfaction of the local authority. The buyer also covenanted only to use such dwelling as a single private dwelling house. Additionally the buyer covenanted to lay on the Blue Land tarmac or such other surface as might reasonably be requested by the seller.

In terms of rights granted for the benefit of the building plot, the transfer granted the buyer the following right – the right at all times to pass and re-pass with or without motor vehicles to and from the building plot over the Blue Land for all purposes connected with the building plot, but not for any other purpose.

The transfer, however, contained the following limitations on the right which had been granted
· Save for any right of way or access granted for the benefit of the building plot, no rights of way or access were deemed to be expressly or impliedly granted over the seller’s retained land and
· The buyer was not entitled to any right of access or light or air or other easements or rights which would restrict or interfere with the future use of the seller’s retained land for building or any other purposes.

So, having been granted a right of access across the Blue Land from the highway to the building plot, what was the problem? The problem was there was no right to enter upon the Blue Land to lay utilities and which would connect into the public supplies found under the nearby highway. Without the express permission of the seller, the buyer entered upon the Blue Land, dug up the Blue Land and laid and connected the usual utilities (which were drainage, water, gas electricity and telephone services) to the building plot. The seller sued for damages.

In the High Court, the buyer won. The high court held it was the common intention of the seller and buyer that the building plot would be used to build a modern dwelling-house and which complied with all the local authority’s requirements. And that such a dwelling-house would have modern facilities connected up to the street. The Court inferred that the intention was that the building plot should have connections to the utilities, so there was an implication to connect through the Blue Land and to maintain such utilities in the future.

The seller disagreed and appealed to the Court of Appeal.

The first question the Court of Appeal considered was whether the limitations I described above, excluded any implied easements. The Court held no. It held the building plot was granted an express right of way over the Blue Land for ‘all purposes connected with the use and enjoyment ‘ of the building plot, but not for any other purposes. The Court ruled one such purpose would be the laying of connections to utilities, and the right to enter in order to maintain the same. Secondly the Court ruled that the right to lay and maintain utilities within the Blue Land would not restrict or interfere with the use and enjoyment of the seller’s retained land for building or other purposes.

The second question the Court of Appeal considered was whether it was wrong to imply an easement in favour of the building plot to lay and maintain utilities. The Court considered the existing law and concluded the case in which an easement can be implied depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will imply such easement as may be necessary (not just reasonable) to give effect to the common intention of the parties to a grant of the relevant right and with reference to the purposes for which the land will be used.

Applying the law in this case – was the judge right to say the suggested easement could be implied or inferred from the common intention of the parties as to the building of a dwelling house on the building plot?

The Court of Appeal held the judge was right. The Court took the view the parties must be taken to have intended that the building of a dwelling-house on a building plot to the satisfaction of the local authority was to be undertaken in a way which would have included the installation of mains utility services and the maintenance of such services.

The Court also ruled the connection of the building plot to the main utilities across the Blue Land for the building and subsequent use and enjoyment of the dwelling-house, was not just reasonable, but was necessary for the building of the dwelling-hose in the manner contemplated by the parties. The implication of the suggested easement was entirely necessary to give effect to the common intention of the parties.

The buyer of the building plot will have received the judgement with considerable relief. Had the buyer lost he would have faced the prospect of disconnecting the dwelling house from the mains utilities; trying to negotiate alternative connections across other third party land; or, more likely, having to pay a generous ransom payment to the seller.

Mark Sellers
Partner
PRINCE EVANS SOLICITORS LLP

Direct Line: 020 8799 1840
Fax Number: 020 8840 7757
Mobile: 07768 714265

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