Marner and another v Clarke

Right of way – Transfer of land for garden with permission to install access gate on boundary with vendor’s land – Applicant owners of garden land claiming right of way over vendor’s land – Defendant purchaser of vendor’s land applying to cancel restriction against title protecting such right – Applicants applying to cancel defendant’s application – Whether right of way over vendor’s land created expressly or by implication so as to bind defendant as successor in title – Application allowedThe applicants owned a house in a development of five dwellings. Access to their property from the main road was via an estate road, over which they had a right of way. A gate opening onto their garden could be reached from the estate road only by crossing land owned by the defendant. The latter’s land and the relevant part of the applicants’ garden had both formerly been owned by a company of which the defendant’s husband had been the managing director. That company had sold the garden land to the applicants by a transfer in 2004. It also transferred the benefit of a right to install the gate in accordance with an attached plan, included at the applicants’ request by an amendment to the transfer. That permission was additional to an express conveyance of the benefit of the company’s own right of way over the estate road, in common with the company and all others so entitled. The defendant purchased the company’s remaining land in 2005.In 2007, the applicants entered a unilateral notice against the defendant’s title, claiming a right of way across a triangle of the defendant’s land to access the gate. They claimed that such a right was conferred, either expressly or impliedly, by the terms of the 2004 transfer so far as it granted permission for an “access gate”. The defendant applied to cancel the restriction, arguing that the company had granted only a limited and temporary permission. The applicants applied to cancel the defendant’s application.Held: The application was allowed. Whether a right of way existed depended not on the subjective intentions of the parties but on whether a reasonable purchaser would believe, based on the transfer and the relevant factual matrix, that such a right had been granted. It was clear from the terms of the 2004 transfer that a right of way had been granted. The addition of an access gate could mean only that access would be gained over part of the vendor company’s retained land. The wording of the transfer did not indicate that such user would be permissive or determinable, or that it was in any way conditional. Had the intention been to grant a limited licence, that could and should have been expressly stated. The right granted was an unequivocal right that would bind successors in title.It made no difference to that conclusion that the company’s right of way over the estate road was also conveyed by the 2004 transfer, since that right was separate and distinct and did not affect the triangle. It was likewise irrelevant that the applicants also owned the land adjacent to the garden land since this was held under a separate title and could be sold separately.If, contrary to the above, the 2004 transfer did not convey an express right of way over the triangle, such a right had arisen by implication because the only sensible way in which an access gate to the garden land could be used was if such a right had been granted.The relevant right of way was a right on foot and with vehicles at all times and for all purposes connected with the use of the garden land as defined in the transfer.Philip Noble (instructed by Brunswick Law) appeared for the applicants; Lynette Calder (instructed by Keogh Caisley, of Tunbridge Wells) appeared for the respondent.Sally Dobson, barrister