Magrath v Parkside Hotels Ltd

An easement to erect and use new access structures at an uncertain future date is subject to the rule against perpetuities. Describing such rights as ancillary rights does not avoid that rule. The statutory exceptions for ancillary works preserve an otherwise valid easement; they do not validate a future easement that is itself void.

A broadly worded emergency right of passage is not necessarily an invalid right to roam. Its scope depends on construction of the grant, including its context and physical characteristics. The parties must exercise the right reasonably and accommodate each other as circumstances develop.

The claimant owned 8 Bingham Place and the defendant owned neighbouring properties operated as a hotel. A 1947 deed granted mutual fire-escape and ancillary rights, including rights to maintain, alter and erect staircases.

The claimant sought summary judgment and/or strike-out relief on issues concerning perpetuity, the alleged width of the easement, compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and proprietary estoppel. The court was invited, so far as justice permitted, to determine the substantive issues rather than merely apply the summary judgment test.

1. Perpetuity. The ancillary right to alter existing staircases and erect new staircases was a grant of an easement capable of arising at an uncertain future date. Following the reasoning in Dunn v Blackdown Properties Ltd and its application in Adam v Shrewsbury, the right was void because it was not limited to take effect within the perpetuity period. Calling the right ancillary did not alter its character. Section 162 of the Law of Property Act 1925 did not save it. The claimant succeeded on this issue.
2. Width and construction. The fire-escape right was not an invalid right to roam. The grant was to be construed as a whole and in context. Its references to staircases indicated a right in the comparatively basic form contemplated in 1947, rather than an entitlement to require whatever arrangements later expansion of the hotel might demand. The word reasonable required sensible accommodation between the owners. The court declined to determine the precise route on summary judgment because the relevant facts remained disputed. The claimant failed on this issue.
3. Section 2. The court could not determine at that stage whether the parties’ alleged arrangements involved practical cooperation in exercising an existing easement or a new disposition of an interest in land. The issue was left for determination after the alleged agreements and their terms had been established.
4. Proprietary estoppel. The pleaded case did not clearly identify detrimental reliance. However, it would be disproportionate to strike out the estoppel claim without giving the defendant an opportunity to amend. Any amended pleading had to state precisely the assurances, reliance and detriment relied upon, and the defendant would bear the costs of amendment.