What's right for Right of Way?

A recent case, (Malbush Properties Ltd v Thameside ABC and Hillingdon ABC 2010) highlights the importance of using the correct wording in a right of way. In Malbush the facts concerned a service road in central London and one of several arguments was about what the right of way could be used for.

Land owners giving others a right of way over their land need to be very careful that they do not give away rights that could have adverse consequences later. For example, the land owners might be quite happy for a road to be used as access to a house but might be rather more concerned if the house becomes retail premises with a constant stream of traffic. 

Conversely, someone whose property is getting the benefit of the right of way needs to make sure that there are as few limitations as possible. This is particularly important for business premises and commercial property where a change in the type of business (or success of the business) could mean a drastic increase in both the amount and kind of vehicles using the access road.

Why is this case important?

The case confirms that, to work out what is meant by written right of way, the correct approach is:

• To establish the intention of the original parties to the deeds...

• From the words in those deeds...

• But read in the light of the background circumstances which would have been known to the original parties of the deeds.

As often happens, the court will not therefore simply look at the words themselves, nor will they just look at the intention of the current parties to the dispute.

For more information, please contact David Heys at Lawson-West on 0116 212 1027.