Lawbite Oral agreement did not extinguish right of way

• United Kingdom

• Litigation and dispute management
• Real estate
• Real estate litigation

20-08-2019

Pezaro & Anor v Bourne & Anor [2019] EWHC 1964 (Ch)

The High Court has held that a right of way was not extinguished where a landowner had relied on an oral agreement made with the previous owner of the land which benefited from the right of way that the right of way would be extinguished.

Mr & Mrs Pezaro owned two properties on New Street in Andover (Nos 149 and 151). A strip of land at the rear of these properties was subject to a right of way in favour of a neighbouring property (No 147). The right had not been used for some time, however , and had in fact been blocked by fencing on the Pezaros’ land. As the Pezaro’s wished to build to the side of No 151 they reached an oral agreement with the, then, owner of No 147, Mr Ayers, that the right of way be extinguished. No steps were taken at the time, however, to remove the right from the property titles at the Land Registry.

Some years later, the Pezaros had secured planning permission for their building work and contacted Ayers again to arrange for the removal of the right of way from the Land Registry records. At this point they discovered that No 147 had changed hands (twice) and was now owned by the defendants, Mr & Mrs Bourne. The Bournes were not willing to agree the removal of the right.

The Pezaros asked the Court to confirm that the right of way had been extinguished. They argued that they had acted in reliance on the agreement with Ayers such that the proprietary estoppel arose and the Bournes were now unable to enforce the right of way.

The Court acknowledged that Ayers may have been estopped from relying on the right of way and that such an estoppel was potentially capable of being binding on successors in title (s 116 of the Land Registration Act 2002). However, given that the right of way remained registered at the Land Registry, the Pezaros needed to demonstrate that they were in actual occupation of the right of way at all times and that the Bournes had notice of this (s 29 and Schedule 3 of the Land Registration Act 2002) to successfully win the argument that the right of way was no longer extant. On the facts the Pezaros could not prove that they were in actual occupation (this requiring more than mere obstruction) and the right of way therefore continued.

Key points

• The Court made it clear that had the Pezaros arranged for the right of way to be removed from the Land Registry titles when they reached agreement with Ayers the case would not have arisen. The decision highlights, therefore, the risks of relying on informal agreements between owners of registered land and the importance therefore of documenting and registering at the Land Registry any agreement relating to rights over land.