Nicholas Kossodo Weaver v Deborah Smith

A professionally drawn and registered deed of easement is construed objectively, by reference to its language read as a whole, the physical features known at execution, the deed’s purpose and commercial context. Where the deed grants access and egress to a residential property, a construction stopping at an intermediate gate or point is unlikely if the surrounding wording indicates access to the highway. Registration makes the public register important when assessing the reasonable reader’s background knowledge; undisclosed collateral documents should not ordinarily alter the public bargain. Rectification is available where the parties shared a continuing intention, objectively expressed it, maintained it at execution, and the written instrument failed by mistake to reflect it.

The claimant and defendant owned neighbouring properties. The dispute concerned the construction of a 2015 deed of easement. The claimant said that the right of way continued from his property, through the defendant’s yard and gate A, to an adjoining unclassified highway. The defendant contended that it stopped at or near gate A. Alternatively, the claimant sought rectification.

The court considered the deed, plan, physical features, registration, and the parties’ contemporaneous dealings. It also determined whether the evidence established a common intention sufficient for rectification.

1. Construction. The deed was interpreted objectively. The court identified the meaning a reasonable reader, possessing the relevant background knowledge, would give the language in its documentary, factual and commercial context. The deed had to be read as a whole, with primary weight given to the language chosen by the parties. Commercial common sense could not be used retrospectively to rewrite an imprudent bargain. [2020] EWCA Civ 1645 was applied.
2. The references to an accessway, and to access and egress from the claimant’s property as a private residential dwelling, indicated a route serving the property rather than merely reaching gate A or a point in the yard. The covenant requiring the grantee to close the gate after use also contemplated passing through it. Reading the deed as a whole against the physical features existing at execution, the right extended through gate A, across the yard and to the highway.
3. Because the deed was registered, the reasonable reader’s background knowledge included the public and comprehensive function of the register. Matters kept private in collateral documents should not ordinarily influence interpretation of the registered bargain, although visible physical features could do so. [2013] Ch 305 and [2013] EWHC 1954 were applied.
4. Rectification. Alternatively, the deed would be rectified. The claimant established a common continuing intention concerning the route, an outward expression of accord, continuation of that intention at execution, and a mistake by which the deed failed to reflect it. Those principles were summarised in [2002] 2 EGLR 71. The equitable basis of rectification is that a party should not enforce written terms where doing so would be unconscionable because they contradict the parties’ mutually understood actual intention. [2020] Ch 365 was applied.
5. The claim succeeded. The claimant was granted a declaration as to the route of the easement. Consequential relief and unresolved matters were left for agreement or written submissions.