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Unclear Drafting Blamed for Dispute Over Right of Way

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

A recent case in the Court of Appeal illustrates how disputes can arise between neighbours as a result of ambiguous drafting of legal documents.

In this case, the dispute concerned the owners of neighbouring properties that had originally been one parcel of land. When the owner died, the property was divided according to the terms of her will. The consents which conveyed the land to the beneficiaries were unclear, however.

Mr and Mrs Bee inherited a cottage adjacent to agricultural land. Mr Thompson, who was a relative of theirs, had acquired the property behind their home from his father.

The two properties were joined by a track, which led from the main street, ran alongside the Bees’ cottage and passed through their garden. The property owned by Mr Thompson contained agricultural buildings, which were in poor condition. He successfully applied for planning permission to build three residential properties on part of his property. Mr and Mrs Bee objected on two grounds. These were that the right of way could only be used for agricultural purposes and the number of houses proposed was excessive.

In the lower court, the judge found that the right of way was limited to agricultural use, as this was what had been intended at the time the original owner’s will was drafted. He also found that the use of the right of way in order to access three residential properties would be excessive, but did not stipulate the number he considered would be fair.

The Court of Appeal overturned the decision. It ruled that the will and the assents should be viewed as a single transaction, so as to give full effect to the intentions of the woman who made the will. In its view, the judge had made an incorrect interpretation in limiting use of the track to agricultural purposes because it prevented Mr Thompson’s property from being used for any other purpose in the future. However, using the right of way for access to three residential properties was excessive for two reasons. Firstly, the track ran through Mr and Mrs Bee’s back garden and the increased use would interfere with their enjoyment of their own land. Secondly, it would also interfere with their own use of the right of way.

As Mr Thompson had neither put forward a case for fewer than three houses in the lower court nor advanced an argument regarding this possibility at the appeal hearing, the Court of Appeal hoped that an agreement on this issue could be reached between the parties to prevent them having to incur further legal costs.

It is always better to make sure that any legal document is ‘right first time’, rather than have to argue it out later in court. Contact us for advice on all legal matters.


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