Sweet & Anor v Sommer & Anor

A way of necessity may arise by implied reservation where a transfer leaves retained land inaccessible, even though access could theoretically be obtained by destroying a physical barrier whose continued existence was contemplated by the parties.

Whether vehicular access is necessary is fact-sensitive. The court may consider uses contemplated at the date of the transfer, including the construction and occupation of a dwelling-house. Necessity is not confined to cases where land is literally unusable in every conceivable sense.

An equitable right arising through proprietary estoppel may bind a purchaser of registered land as an overriding interest where it is openly exercised and enjoyed with the land. A right wrongly entered on the register is not thereby prevented from also qualifying as an overriding interest.

The claimants owned Forge Meadow and part of the northern field adjoining the defendants’ property, the Old Forge. Historical conveyancing mistakes meant that rights of way had been purportedly granted or reserved without the necessary legal formalities.

The claimants sought declarations that they had vehicular rights of way over the Old Forge Yard. They relied on an implied reservation of a way of necessity, proprietary estoppel, and the overriding-interest provisions of the pre-Land Registration Act 2002 registration regime. The defendants disputed the existence and legal effect of the rights and complained that any right benefiting the northern field was merely equitable.

The issues were whether Forge Meadow had a vehicular way of necessity, whether the Martins’ equity bound the first defendant, whether the northern-field right was an overriding interest, and whether the defendants had obstructed the rights of way.

1. Forge Meadow. The transfer of 15 April 1988 left Forge Meadow landlocked for the purposes of the doctrine of necessity. Mr Lovering’s co-ownership of the Old Forge Yard did not provide a sufficiently secure legal right, since his ability to use it could be affected by the other co-owner’s statutory or matrimonial rights. The theoretical possibility of demolishing part of a workshop did not prevent the land from being landlocked where the physical barrier was plainly intended to remain.
2. The question whether vehicular access is necessary is one of fact, determined in light of all the surrounding circumstances. A way may be implied for a use contemplated at the date of the grant although that use has not yet begun. On the evidence, vehicular access was necessary for the contemplated construction and subsequent occupation of a dwelling-house. A vehicular easement was therefore impliedly reserved over the Old Forge Yard.
3. The proprietary-estoppel case was also made out. The Martins relied on the apparent grant, purchased the land and built their home, while the Loverings knew of their belief and failed to object. Granting a vehicular right of way was the appropriate way to satisfy the equity. Under the pre-Land Registration Act 2002 regime, the right was capable of binding the first defendant as an overriding interest under rule 258 of the Land Registration Rules 1925, because it was openly exercised and enjoyed with the land.
4. Northern field. The right of way benefiting the northern field operated only in equity, but it was known or reputed as appertaining to that land and was potentially an overriding interest. Its mistaken entry on the register did not disqualify it from that status.
5. The defendants’ parking and plant tubs interfered, or potentially interfered, with the rights of way. The plant tubs were to be removed or repositioned, and the claimants were entitled to declarations, injunctive relief, amendment of the relevant titles and, in principle, an inquiry as to damages.

First-instance decision. No appellate history was stated in the judgment.