Lawbite: The road less travelled - implied rights of way

• United Kingdom

• Real estate

13-02-2019

Parker and another v Roberts [2019] EWCA Civ 121

Even in this greyest of grey areas of law, it seems that there are still new arguments to be raised. This case showcases a bit of clever, but ultimately unsuccessful, legal sleight of hand - the Court of Appeal considered various avenues of implied rights but the most interesting was one party’s attempt to flip the benefit and burden principle from Halsall v Brizell on its head.

The foundations of the benefit and burden principle are built on the idea that a party cannot take the benefit of an easement and ignore the burden, such as using an access way without making the required contributions to maintenance. This principle can get around the difficult issue of making positive covenants (such as to pay, to repair etc) bind successors in title. In this case, a canny landowner suggested that as it took the burden of a covenant (ie to pay towards upkeep) it should be entitled to the benefit of the right of way, notwithstanding the clear wording in the conveyance.

The Court was not convinced by this or the landowner’s other arguments and held that the benefit did not pass to the land paying a contribution towards maintenance. As such, the owner’s chance to develop that land was thwarted.

• This case is a useful reminder of the importance of clear drafting and the inclusion of all necessary rights in any transfer.
• Implied rights very rarely give the right result for either buyer or seller so should be avoided by stating that the rule in Wheeldon v Burrows and the effect of section 62 of the Law of Property Act 1925 won’t apply.
• Be careful, though – stating that the property sold will have the benefit of no rights other than those expressly granted may prevent existing easements from passing along with the land.