Case law: Court clarifies when right of way extends to additional land acquired after right of way was granted
Prospective buyers or tenants of land enjoying a right of way should ensure the wording in the right of way will give them the necessary rights of way if they later acquire or lease additional land - particularly where any of the land was acquired by adverse possession.
A driveway, owned jointly by several parties, connected a house to the nearest road. The land on which the house was built benefited from a right of way over the driveway under a 1921 conveyance, in these terms:
'with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said [house] but not further or otherwise.'
The owner of the house had a garage next to the house, which was built on land which was once part of the driveway. This land benefited from a right of way over the rest of the driveway, but one acquired through adverse possession.
A wine merchant with a shop fronting the road used the driveway for deliveries. When delivery vehicles were in the driveway, the owner of the house could not access or exit his garage. He successfully took the wine merchant to court on grounds the merchant was obstructing his right of way.
The wine merchant appealed, arguing that the right of way did not include a right to park in the garage for extended periods of time.
However, the Court of Appeal ruled that the right of way did extend to the garage because the garage was used in conjunction with the house: the right of way was for 'a purpose connected with the use and occupation' of the house. However, if the garage had been used independently, for example, it had been let to a third party, the right of way would not have extended to it as it would not then have been connected with the use and occupation of the house.
Prospective buyers or tenants of land enjoying a right of way should ensure that the wording in the right of way (defining which land is to benefit from it, and the purposes for which the right was granted), will give them the rights of way they need if they later acquire or lease additional land, particularly where any of the land was acquired by adverse possession
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