REF/2006/1621
REF/2006/1622

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
 MARY CLEMENTINE ALLEN

APPLICANT

and

NORMA MARION HIGSON

RESPONDENT

Property Address:  181 Highgate, Kendal, Cumbria, LA9 5AA
Title Number: CU47090

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

 Sitting at: Procession House
On: 7 April 2008

Applicants Representation:  Counsel
Respondent Representation:  Mr. J.M. Higson

DECISION  

 Owner of two adjoining properties sells one of them.  Access from the side door of the retained property to the highway involved crossing a very small open area of the property sold.  Implied reservation of right of way over that area established on the facts.  
1.	
For the reasons set out below, I shall direct the Chief Land Registrar to give effect to the application of the Applicant dated 17 May 2006 and to cancel the application dated 3 November 2005.  The application to be cancelled relates to a claim to two prescriptive easements.  One is a right of way.  That claim does not arise as the claimant has such a right of way without having to rely on prescriptive rights, and it is that right which is covered by the application dated 17 May 2006.  The other is a right to leave bins in part of the Respondent’s property.  That claim was abandoned at the hearing as the claimant failed on the evidence to establish the requisite 20 years of user.

2.	The properties with which these references are concerned are 181, 185 and 187 Highgate, Kendal.  I will refer to them respectively as 181, 185 and 187.  There is no 183, so that 181 and 185 adjoin each other.  The Applicant, Mrs. Allen, is the registered proprietor of 181.  The Respondent, Mrs. Higson, is the registered proprietor of 185.  Although she attended the hearing, she has at all times been represented by her husband, Mr. Higson, and the only evidence provided on her behalf was provided by him.

3.	181 is on the corner of Highgate and Gillingate.  Between the ground floors of 181 and 185 there is a relatively narrow covered passageway which forms part of 181 (the passageway).  It leads from the street, Highgate, to an open area (the open area) at the rear of 185 and 187 which comes within the title of 185.  

4.	At the end of the passageway where the open area is found, the left hand wall coming from the street turns left at right angles for a distance which is not in evidence but which can be seen from photographs 5 and 6 in the trial bundle.  The wall, which is the boundary wall of 181, then turns again at right angles along the boundary of the open space.  This wall is set back from the passageway by about 2 to 3 feet – the exact measurements were not in evidence.  There is a side door to 181 at the beginning of this wall which opens onto the open area close to the passageway.  Until relatively recently, this door consisted of a double fire door which could only be opened from the inside.  There was an issue at the hearing whether, when the fire doors were opened they would extend to a point at which they might obstruct the passageway to any degree.  Although the old fire doors are still to be seen in the open area, as shown in photographs 7 and 8, no measurements were produced.  There is now a porch, constructed in 1999, in front of where the doors were and a further area of wall between the porch and the passageway.  The point was not raised at the site view, and no measurements or other evidence was given at the hearing as to the depth of the wall against which the fire doors would have opened, but I am satisfied that when the fire doors were open, they would not have protruded over any part of the passageway.

5.	Access could be obtained from the open area to the rear of 185 and 187, and at the other side of the open area are, or were, outbuildings belonging to 187.  I shall deal with these in more detail later.

6.	By a conveyance dated 12 July 1929, 181 was conveyed to Harry and Alice Underhill upon trust for sale for themselves as joint tenants beneficially.  The 1929 conveyance gives no indication of what if any rights of way were carried by the conveyance.  According to a conveyance of 181 dated 2 January 1957 (the 1957 conveyance), Harry Underhill died in 1948 and Alice Underhill died on 6 February 1955.  Probate of her will was granted to William Fielding Underhill and Florence Evelyn Ward on 28 April 1955.

7.	When she died, Alice Underhill also owned 185 and 187.  I have no evidence as to when she acquired them.  By a conveyance dated 31 December 1955 (the 1955 conveyance), her executors conveyed 185 and 187 to William Fielding Underhill and John Frederick Underhill.  The first recital to that conveyance states that by her will, made in 1950, Alice Underhill had directed her trustees to offer to sell 185 and 187 to those purchasers, who were her sons, the properties being described as “then in the occupation of Mr. Jack Allen and Messrs H. Underhill and Company”.  The purchase price was £800.  Recital (4) states that the purchasers gave the notice to purchase required by the will.

8.	The 1955 conveyance conveys to the purchasers “ALL THAT freehold dwellinghouse and shop with the warehouse and appurtenances thereunto belonging situate and being number 187 in Highgate Kendal in the County of Westmoreland as now in the occupation of the purchasers AND ALSO ALL THAT freehold dwellinghouse and shop with the appurtenances thereunto belonging situate and being Number 185 in Highgate Kendal aforesaid as now in the occupation of Mr. Jack Allen as tenant TOGETHER with all rights of way and other easements thereunto belonging”.  No mention is made of any rights reserved for the benefit of 181.

9.	By the 1957 conveyance William Fielding Underhill and Florence Evelyn Ward conveyed 181 to Herbert and Amy Wilkinson.  The 1957 conveyance recites the 1929 conveyance and the trust for sale created by it, the death of Harry Underhill and then of Alice Underhill as I have described.  It then goes on to say that the vendors are selling as trustees of the trust for sale created by the 1929 conveyance.  There is no explanation as to how this could be following the death of Harry Underhill, when, in the absence of a severance of the joint beneficial interest, Alice Underhill would have become solely entitled beneficially to 181 and the trust for sale would have terminated.

10.	The conveyance describes the property sold as “ALL THOSE two shops and premises (formerly a dwellinghouse and shop) comprised in the hereditaments number 181/181a Highgate Kendal aforesaid near to the entrance to Abbot Hall with the land forming the site thereof and occupied therewith and the outbuildings and appurtenances thereto belonging as the same were recently in the occupation of Messrs W.T. Avery Limited as tenants and as including the covered passage-way or entry on the south side of and forming part of the property hereby conveyed Together with the right of way over the land on the south side of the property hereby conveyed to the side door of such property and a right of access (so far as the Vendors can grant the same) over the land on the south and east sides of the property hereby conveyed for the purpose of maintaining and reserving such property”.  

11.	It is common ground that the purported right of way over the land on the south side of the property to the side door of the property was a right of way to the side door to which I have referred, and that in practice, apart from a few years when access is said by Mr. Higson to have been available to the open area from the rear, that meant access across the open area between the passageway and the side door.  It would also seem to be the case that the reference to 181a was due to the recited division of the property at the time into two shops.

12.	The 1957 conveyance goes on to except and reserve to the vendors “(in common with all other persons having rights thereover) a right of way at all times and for all purposes with motor cars and other vehicles over the said covered passage-way or entry to and from the yard in the rear of the property hereby conveyed and the adjoining premises on the south side thereof and from and to Highgate aforesaid but subject to the payment by the persons exercising the right hereby reserved of a proper proportion of the expense of repairing and maintaining the floor or surface of the said passage-way”.

13.	Bearing in mind that the vendors had sold 185 and 187, it is unclear what, if any, land they retained for the benefit of which such a right of way could have been reserved.

14.	181 was subsequently transferred by reference to the 1957 conveyance on a number of occasions, and was acquired by Mrs. Allen and her late husband under a conveyance dated 2 December 1988, the title being registered at the Land Registry in the following month. 

15.	It appears from the recitals to a conveyance of 185 and 187 dated 31 March 1973 to Craggs Properties Limited that William Fielding Underhill died on 19 March 1957, and that John Frederick Underhill had died in 1972.   187 was sold off in 1991 and 185 was sold to Mrs. Higson in 1994, when it appears first to have been registered at the Land Registry.

16.	It is common ground that the 1957 conveyance cannot have conveyed any greater rights over the open area than had been reserved at the time of the 1955 conveyance of 185 and 187.  There is some limited further evidence as to the surrounding circumstances in 1955.  Mr. Higson has provided documentary evidence that H. Underhill & Sons were in occupation of 187 at least since 1945 and that the premises included a house, shop and warehouse.  W.T. Avery Limited appears to have been in occupation of 181 for at least the same length of time, but there was a change of occupancy of 181 in 1956/7.  W.T. Avery went out of occupation in December 1956 and Amy Wilkinson went into occupation on 28 February 1957, after the 1957 conveyance.

17.	181 appears to have been constructed in the 1890’s, and not to have changed externally since that time.  There was never any external doorway except for one or more front doors onto Highgate and the side door to which I have referred.  There is an old hatch above the passageway which Mr. Higson suggested may have been used at some time to take in stock from the passageway.  I do not know whether it was still in use in 1955.   Mr. Higson’s researches indicated that the Underhills had had two butcher’s shops in the vicinity, one at 187 and the other elsewhere.  He had also found an advertisement by the Underhills indicating that they would make home deliveries, but there is no evidence as to how these were organised or from which premises.

18.	Estate agents’ particulars of 185 and 187 dating from November 1972 describe the ground floor accommodation at 187 as being now vacant and as including a ground floor shop plus a room behind plus a workshop with additional rear access and with “a small lean to GARAGE”.

19.	Mrs. Allen contends that when 185 and 187 were sold in 1955, a right of way was retained over the open area between the side door and the passageway for the benefit of 181 either as a way of necessity or by way of implied reservation.

The law
20.	In Wheeldon v Burrows (1879), 12 Ch.D. 31, Thesiger J, in a well known passage stated that “if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant.”  He went on, however, to draw attention to certain exceptions, saying that “One of those exceptions is the well known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be and probably are, certain other exceptions”.

21.	In Pwllbach Colliery Company v Woodman, [1915] AC 634, Lord Parker considered the ways in which an easement could be granted or reserved.  At pp.646-647, he stated as follows:

“The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made.  The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purpose in and for which the land granted or some land retained by the grantor is to be used.  See Jones v. Pritchard and Lyttelton Times Co. v. Warners.  But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner.  It is not enough that the subject of the grant or the land retained should be used in a manner which may or may not involve this definite and particular use.”

22.	In In re Webbs’ Lease, [1951] 1 Ch 808, which was not cited to me at the hearing, Jenkins LJ referred to the general rule that the easement should be expressly reserved and to two exceptions, easements of necessity and mutual easements.  He continued:
	
“But it is recognised in the authorities that these two specific exceptions do not exhaust the list, which is indeed incapable of exhaustive statement, as the circumstances of any particular case may be such as to raise a necessary inference that the common intention of the parties must have been to reserve some easement to the grantor, or such as to preclude the grantee from denying the right consistently with good faith, and there appears to be no doubt that where circumstances such as these are clearly established the court will imply the appropriate reservation.”

23.	In  Sweet v Sommer, [2004] EWHC 1504 (Ch), a transfer of part of the land owned by A to himself and his wife left A with retained land adjoining the transferred land, but there was no express reservation of any right of way over the transferred land.  A few months later, the retained land was sold to a third party who intended to build a house on it.  That transfer purported to grant the purchasers a vehicular right of way over a driveway which crossed the land that had been transferred to A and his wife.  The purchasers built their house and used the rights purportedly granted by the transfer to them.  Both the original retained land and the land which had been transferred to A and his wife were subsequently sold on by their respective owners.  The issue subsequently arose whether the retained land enjoyed a right of way over the original transferred land.  

24.	It was contended that the retained land had not been rendered landlocked by the first transfer.  Hart J held that the effect of that transfer was to leave the retained land landlocked except to the extent that it was theoretically possible to demolish a workshop.  He continued at paragraph 24:

“I do not consider that this possibility prevented him from being landlocked for the purposes of the doctrine of implied reservation of an easement of necessity.  That doctrine however, while it may not rest at all firmly on the presumed intentions of the parties, or on their actual intentions, must be sensitive to physical as well as legal facts existing at the date of the relevant grant.  Where access to the property retained is only available either over the property granted or by destruction of a physical barrier the continued existence of which was obviously contemplated by the parties, it is consistent with the doctrine (and not contradicted by authority) to say that a way over the property granted is impliedly reserved as a matter of necessity.”

25.	Hart J then went on to consider whether the way reserved was vehicular, and in paragraph 30 concluded as follows:

“What both those cases illustrate, in my judgment, is that the question whether a particular way is necessary is, in the final analysis, a question of fact to be determined by a consideration of all the surrounding circumstances... There will be circumstances where it is so obvious from the nature of the particular house and the circumstances surrounding the grant that a vehicular way was treated as necessary that it will be open to the fact finding court to conclude that the house would not be useable in the ordinary sense of the word without it.”

26.	The case went on appeal to the Court of Appeal, which disposed of the appeal without having to consider whether the view expressed by Hart J as to ways of necessity were correct.  In Adealon International Proprietary Limited v London Borough of Merton, [2006] EWHC 1075 (Ch), Judge Frances Kirkham, sitting as a judge of the Chancery Division, refers at paragraph 47 to submissions by counsel that Hart J founded his decision not on the doctrine of necessity but on that concerning an easement of common intention.  I do not take the remainder of her decision as expressing any concluded view on that submission, which appears to me to be contradicted by the passages which I have cited.

The application of the law to the facts in the present case
27.	It does not appear to me that this is a case of an easement of necessity on the evidence before me.  181 was not landlocked and had ready access onto the highway by the front door.  It is possible that it could not have been used because of fire regulations or other regulations, either at all or as a shop, without the side access, but there was no evidence or argument before me based on the law in 1955 or on the requirements of the local authority at that time.

28.	Sweet v Sommer might have assisted Mrs. Allen had she been compelled to obtain access to the highway by creating a new door in an existing wall, but that is not the case here.

29.	In my judgment, this case depends upon whether an easement can be implied by reason of the common intention of the parties in 1955.  The common intention of the parties was to implement the option to purchase granted by Alice Underhill’s will.  That option was to purchase part of her property (185 and 187) at a time when the remaining part (181) was likely to be let to a commercial tenant.  I do not have the will before me, but there is no suggestion that it dealt expressly with the claimed right of way.  

30.	In those circumstances, I cannot construe the option granted by it as being an option that would leave the existing tenant deprived of rights which had been granted by the lease to that tenant.  The lease included both the passageway and the side door.  On the balance of probabilities, it must, in my judgment, have included access rights from the side door to the passageway which was only two or three feet away.  If that right had not been granted expressly, it would have been implied.

31.	Further, I do not consider that her two sons, who were purchasing 185 and 187 considered that they were acquiring any more rights than their mother was offering them, and as one of the vendors, it was the duty of William Fielding Underhill to ensure that he did not convey more than it was his late mother’s intention to sell.  That he did not intend to do so further appears from the 1957 conveyance when he expressly sells 181 as trustee for sale with the benefit of the right of way that is now in issue.  I do not consider that it would have been consistent with his good faith for him to have denied the existence of that right of way after that time, and although his brother was not party to the 1957 conveyance, I consider that if there had been any question as to the right to go from the side door to the passageway, that would probably have manifested itself in the intervening period between the two conveyances.

32.	It appears to me to be obvious that anybody observing the side door, which leads onto the open area close to the passageway, would have no hesitation in concluding that, in the absence of special circumstances, the vendors, who were retaining 181, would also be intending to retain a right of access between that door and the passageway and that any purchaser would have been under no illusion but that that right of access would be intended to be retained in the absence of stipulation to the contrary.  So far from being outside purchasers, the purchasers included one of the vendors, and so far from there being special circumstances to the contrary, the circumstances of the existing lease of 181 were an additional indication that such a right of access needed to be retained.

33.	In addition, while I have no information as to legal requirements, it is self-evident that the fire doors and the right of access were of considerable benefit to 181, while, so far as I can tell, they imposed no significant burden on 185 or 187.  I would add that it was common ground that at most the right of access would be a pedestrian one.  The vendors retained the passageway and even if they brought a small vehicle up it, there was no need for it to go onto the open area.

34.	Mr. Higson has suggested that there may have been good reason to abandon the right of access because, he suggested, the purchasers’ butcher’s business may have needed unimpeded access to the rear in connection with its delivery service.  There is no evidence that the delivery service operated from the back of 187, but even if it did, I am unable to see how pedestrian access between the passageway and the side door can have had any significant effect on the delivery service.  It would have been a rash delivery driver who tried to go along the passageway at much above walking speed, and the passageway is in any event short.  Mr. Higson suggested that the fire doors might, if open, have impeded the delivery vehicles, but he produced no evidence to indicate that they would even reach the passageway if they were open, and I have found that, on the photographic evidence before me, and on my recollection of the site view, on the balance of probabilities they would not do so even if fully open.

35.	I am satisfied, therefore, that there was an implied reservation of a pedestrian right of way between the side door and the passageway over the open area.

Prescription
36.	In view of my decision as to the reservation of an implied right of way in the 1955 conveyance, no question of a prescriptive right arises.  I find, however, that access was obtained from 1977 as set out in the statutory declarations of David John Jones and Patricia Margaret Gunson in connection with the use of the side door as a fire escape, including in connection with inspections by the fire authorities on many occasions.  I also accept their evidence that the open area was used to keep rubbish bins during their occupation as antique dealers from 1977 to late 1988 or early 1989, and it appears to me to be a necessary inference from that fact, on the balance of probabilities, and bearing in mind that they had (rightly or wrongly) an express grant of a right of way in their title deeds, that the rubbish would have been taken down the passageway either when collected, or for collection regularly.  As the bins were placed immediately on the other side of the side door from the passageway, this would necessitate the use of the open area to obtain access to the passageway.

37.	In this respect I accept the evidence of Mrs. Allen that the business continued until just before she and her husband took over the premises at the beginning of 1989.  Mr. Higson believed that the antique business had ceased to be operated from that address some time earlier, but was unable to give any direct evidence to that effect.

38.	The use of the bins and the use of the side door as a fire door continued until around the end of 1995 or early 1996 when the restaurant business then at 181 ceased.  Between 1995 and 1999 the property was empty and it and the business were on the market and in the hands of agents.  During that time, Mrs. Allen would visit the property weekly to comply with insurance requirements.  Occasionally, she would show prospective purchasers around it if the agents were not available, and the agents would also attend to show prospective purchasers around.  While Mrs. Allen’s recollections of what she showed prospective purchasers are naturally somewhat vague, and she does not know precisely what the agents did, I consider that it is inevitable that she and the agents would have shown most prospective purchasers the fire doors and where the bins could be kept (as she then understood) in the open area and the way from the side door to the passageway and from there to the street.

39.	I am satisfied that there was sufficient use of the way between the side door and the passageway to amount to continued user during this period.  Since 1999, 181 has been used as a Chinese restaurant, the bins were replaced in the open area and the use of the way between the side door and the passageway resumed as it had been before 1996.  Indeed, it increased.  Mr. Higson had been living in London, but went to live in Kendal in about 2004.  He then noticed the increased use of the side door and the fact that the fire doors had been replaced, and it was this that led to his assertion that there was no right of access between the side door and the passageway.

40.	I am satisfied that if there had not been an easement reserved by the 1955 conveyance, one would have been acquired by prescription by 1997.  I note that in 1994, Mr. Higson had pointed out to staff at the restaurant then operated at 181 on behalf of Mrs. Allen that they had no right to keep bins in the open area, and had confirmed this in writing while giving written consent to their being kept there for the time being.  That letter may well have had the effect of making the future keeping of bins permissive even though Mrs. Allen knew nothing about it, but it did not relate to the use of the open area to as a means of access between the side door and the passageway.

41.	For completeness, in view of Mr. Higson’s submissions, I would add that the use of the access was clearly without force, open and without permission.  The fact that Mr. Higson was not there to see the use did not make it secret.

Dated this 11th day of April 2008

By Order of The Adjudicator to HM Land Registry