Mapara & Ors v Demetriou

Construction of a long-term burial-right deed depends on the language used in the deed read in its commercial and factual context. Where a deed uses “successors in title” in some provisions but reserves a right expressly to the defined “Grantor”, that difference may indicate that the right is personal and does not pass to a successor.

A successor owner may regulate matters not dealt with by the deed, but cannot derogate from the burial rights granted. Regulations cannot therefore confer an unlimited right to dig graves or permit charges and conditions inconsistent with the grant.

The claimants were trustees of an unincorporated Islamic cemetery association. The defendant was the current owner of a privately owned cemetery. A series of deeds granted the association long-term rights to bury members in specified plots and reserved to the original owner an exclusive right to dig graves, subject to a proviso permitting the association to dig if graves were not dug within a reasonable time.

The claim concerned whether the reserved right passed to the defendant, whether current cemetery regulations independently entitled him to control grave opening and charge fees, whether he could permit non-members’ burials or dump rubbish, and whether a 2000 deed had been validly executed.

1. Construction of the deeds. Applying the approach agreed from Wood v Capita Insurance Services Limited [2017] UKSC 24, the court held that the defined term “Grantor” referred to Badgehurst alone. The deliberate use of “successors in title” in some provisions, but not in the provision reserving the right to dig graves, showed that the omission was significant. The right to dig was therefore personal to Badgehurst. The defendant, as successor in title, had no exclusive right under the deeds.
2. The construction did not produce an absurd result. Badgehurst had taken a premium for the burial rights and had itself accepted that another person might dig where necessary to permit a timely Muslim burial.
3. The principle against derogation from grant applied. The court relied on Johnston & Sons Ltd v Holland [1988] 1 EGLR 264. Although a successor owner had some scope to regulate grave digging through cemetery regulations, he could not impose terms inconsistent with the grants. The current regulations could not be used to insist that the defendant alone dig every grave. Any future regime would have to permit a reasonable charge and allow the claimants to dig where the defendant could not act within a reasonable time.
4. The defendant accepted that he could not arrange or permit burials of non-members in the allocated plots. He also accepted that he could not dump rubbish there, since that would place the claimants in breach of their obligation to keep the plots clean and neat.
5. The defendant accepted that the 2000 deed secured the burial rights in equity even if it had not been properly executed. The evidence was insufficient to establish valid execution on the balance of probabilities. The claimants nevertheless succeeded on the substantive rights, and declarations were ordered. The question of a reasonable future digging charge was not determined.