Burras Otley Limited v Helen Johnson & Ors

In construing historic conveyances, the validity principle permits a construction favouring validity only where the rival construction is realistic. It cannot be used to rewrite clear language or cure a grant or reservation which is void for perpetuity.

Contractual and conveyancing language must be given its objective meaning in its documentary, factual and commercial context. Where two realistic interpretations exist, the valid interpretation may be preferred. Applying those principles, a reservation referring back to future roads created only a contingent right and was void, whereas a differently worded reservation over the proposed road itself created an immediate right. A later express grant did not, without more, exclude wider rights passing under section 62(1) of the Law of Property Act 1925.

Burras Otley Limited appealed, and the first to third defendants cross-appealed, against declarations made by Deputy District Judge Jonathan Rodger on 7 September 2022 following a summary judgment application.

The dispute concerned rights of way arising from conveyances of development land made in 1936 and 1937. The Claimant owned retained land, while the defendants owned houses constructed on the conveyed plots. The central questions were whether the reservations created immediately effective rights or only rights arising when a proposed new road was built, whether the rights were void for perpetuity, and whether a 1946 conveyance severed rights benefiting the yellow land.

1. Appeal concerning the 1936 Conveyance dismissed. The reservation referred to the same streets and roads as the grant, namely roads to be formed, made and opened in future across the retained and conveyed land. It did not reserve an immediate right over the site of the proposed New Road or over a rough track. The intended right was therefore contingent and void for perpetuity. The validity principle could not justify the Claimant’s construction because it was not a realistic interpretation of the words used.
2. The court applied the objective approach to construction. The conveyances had to be read in their documentary, factual and commercial context, while giving appropriate weight to their natural and ordinary language. Commercial considerations could not displace sufficiently clear wording. The physical and historical context was admissible because the conveyances were unregistered when made and were not documents taking effect only on registration.
3. Defendants’ appeal concerning the 1937 Conveyance dismissed. The reservation differed materially from that in 1936. It referred directly to the part of the proposed New Town Planning Road included in the conveyed plot and lacked the earlier reservation’s link to future streets and roads. Two realistic interpretations were available: an immediate right over the relevant land, or a future right over the road when built. The validity principle therefore required the immediate, valid construction to be preferred.
4. Challenge based on the 1946 Conveyance rejected. Section 62(1) of the Law of Property Act 1925 carried appurtenant rights with the yellow land unless a contrary intention was expressed. Under section 62(4), the inclusion of a more limited express grant did not by itself exclude wider rights. The 1946 Conveyance was not construed as removing existing rights, and in any event the purported future grant was void for perpetuity.
5. The defendants could not challenge the factual finding about the existence or character of the rough track without a Respondent’s Notice. Their additional construction argument was part of the same exercise of interpreting the 1936 Conveyance and could be considered.

• High Court, Chancery Appeals List: On 3 August 2023 Mr Justice Fancourt dismissed both the Claimant’s appeal and the first to third defendants’ appeal against the order of 7 September 2022.
• Deputy District Judge Jonathan Rodger: On 7 September 2022 declarations were made concerning rights of way over the defendants’ land following a summary judgment application.