Help with understanding a Reservation and Exception covenant

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    Help with understanding a Reservation and Exception covenant

    Before we bought the house we live in the previous owner made a covenant with the previous owner of our neighbours house. We live at a dead end down a country road. The covenant reads:

    'The land is subject to the following rights reserved by a Conveyance thereof dated 8 January 1982 made between (1) name of previous owner of my neighbours house (The Vendors) and (2) Name of previous owner of our house (The Purchaser): -

    " subject to (1) an Exception and Reservation in favour of the Vendors and their successors in title of a right of way at all times and for all purposes with or without vehicles or animals in common with the Purchaser over the road or way"

    We have lived here for 20 years and our neighbour has used this right of way only a handful of times. As our kids have grown up we have acquired more cars and now have grown used to using part of the land which is covered by the right of way covenant as a car parking spot (we can easily move this, no problem). This affects the right of way in that only bicycles and walkers could get passed without us moving the car. The covenanted land is only a small strip for access. The land affected on our part is agricultural land and the land it accesses is also my neighbours agricultural field (or at least was, I'm unsure if they've changed the use of land). The issue is - recently I was approached by my neighbour and he told me that he has right of way, at any time with any vehicle and how is he meant to do that with cars parked there. I said all you need to do is ask but that doesn't seem to be enough for him. (it was always to our understanding it was only agricultural as both fields are agricultural lands and he has his own access and drive to his house a little further down the road).

    My question is: what does this actually mean? Is there anything restricting what purpose he can use the access for? My assumption is that the covenant was written to allow agricultural access only and for some reason hasn't been specified in that way. The previous owner of my house and my (other) next door neighbour believed it was only agricultural access. Is there anything in the above writing which suggests we cannot park our cars there? Of course we are totally willing and happy to move them when/if he needed the full space to get There are two gates - one into our field and one a few meters after into theirs. - my concern is that these neighbours want to have their drive going through this right of way as they have mentioned how much the road which continues onto their house is very bumpy and that they have put hardcore under the grass in their field which leads up to their house. They already have a drive which is accessed no where near our house. He has threatened getting a solicitor involved.

    Any help greatly appreciated. Very confused... Thanks in advance

    Is the neighbour trying to get permission to build houses on the field I wonder? At all times means that access should be available at all times in my opinion (sorry)
    Unshackled by the chains of idle vanity, A modest manatee, that's me


      thank you island girl - so you think we are breaching the covenant by parking there even if willing to move at all times if need be?

      If they were to use it like their drive would it only apply to them, the 2 owners of the house, for a right of way do you think? Could they have guests driving down there for example? The postman? HGV delivery building materials?

      My thoughts exactly regarding the building - I'm pretty sure he is. His wife has also mentioned they don't like driving along the road which leads to their house as there are too many potholes. They would prefer to use the access up our part of the road for that reason. The road is a private one and we all pay towards the upkeep. The neighbour involved does not contribute to this fund so I was hoping the fact he has never contributed to the upkeep of the road which he would have to be using to use our 'right of way' would help our case somehow. Not nice to be on bad terms but basically, I do think they are trying to build something. Bit of a bummer.


        I hate to say it but I think he could enforce it and if he builds 100 houses on the land they will have access too. You can make sure it remains single track which will limit the number of houses he can build.


          First, just to get the terminology right, what we have is an easement, not a covenant. An easement is a right which one property enjoys over another, for example a right a right of way or a right to use pipes and cables. A covenant is an agreement to do something (such as keeping a fence in repair) or not to do something (such as not to build in the garden).

          The right is granted in very wide terms: "at all times and for all purposes with or without vehicles or animals". The chances of successfully arguing that it is restricted to agricultural use approach zero, particularly given the inclusion of animals. In any event, a restriction to agricultural use would not help as you have an obligation to keep the way clear whatever the use. Parking is not permitted on a right of way; the only exceptions can be very short term parking (e.g. for a delivery or unloading shopping) or if the width of the way is very generous. It does not extend to: "You only have to knock on the door and we'll come straight out and move the car."

          Sorry, but this is one where you are going to have to concede if the neighbour insists. The neighbour's use though must be reasonable. He cannot damage the way nor can he improve it without your consent. See also my next post.


            Originally posted by royw View Post
            ...and if he builds 100 houses on the land they will have access too.
            He cannot go that far. Whilst it is possible in some cases to argue that a particular type of use could not have been contemplated by the parties when the right was granted, the law is clear that an unjustifiable increase in the burden of the easement will not be allowed.


              Really interesting Lawcruncher. How is the original burden "calculated" in this case? What level of "uplift" could be acceptable? And hobbitfairy I think the pot holes are a red herring - they want to use your drive more and more to make a the land in Green Belt? Is it in the local plan which your council must have? Are there any proposals to change it to development land?
              Unshackled by the chains of idle vanity, A modest manatee, that's me


                Thank you everyone. An easement, good to know, thanks for informing me of that. Very useful responses. Learning a lot about all this.

                I have cleared the right of way of cars and have visited said neighbour with a jar of my damson jam to make peace for now and apologise for the upset.

                "the law is clear that an unjustifiable increase in the burden of the easement will not be allowed."

                Thats great to know - basically that puts my mind as ease because my fear was that exactly. After looking at the deeds I was a little concerned it was very vague and very broad. I'm not sure our other neighbours would support any proposal to build on the land and I'm not sure my neighbour (who owns land) would even want to do that. You never know though - I wish neighbours could all be mates!


                  Unfortunately the chance of mega money for the field if sold to a developer turns neighbours into enemies all too easily! I wish you all the best but would be interested to know about the legal arguments re unjustifiable increase and how it is calculated? Also forewarned is forearmed - check the local plan!
                  Unshackled by the chains of idle vanity, A modest manatee, that's me


                    Originally posted by islandgirl View Post
                    How is the original burden "calculated" in this case? What level of "uplift" could be acceptable?
                    There are no hard and fast rules. Each case has to be considered on its merits.

                    In this case a planning consideration would be whether the strip as it stands is considered sufficient for access by the planning authority. The neighbour has no right to increase the width of the strip or upgrade it.


                      Many thanks Lawcruncher
                      Unshackled by the chains of idle vanity, A modest manatee, that's me


                        A farm was sold near me 8 years ago, the access to it crossed the neighbours land. The barns have all been converted so there are now six houses where they used to be one. The neighbour was unable to stop it.
                        We have a similar situation where one farm has become 4 houses and 2 parcels of land. We bought some of the land. There has never been any suggestion access to it was in doubt though the road owner has kept 2 stone gateposts a yard in from the wall that limits the size of vehicles.
                        I am also curious how they determine 'unreasonable', it seems rather subjective.


                          It is not so much that any decision is subjective, but that all the relevant facts need to be considered and appropriate weight given to each.

                          You will get more information on the question than you probably want if you Google: unjustifiable increase in the burden of the easement.

                          NOTE. I had a mental aberration when typing post 5. It should be read without the words: "particularly given the inclusion of animals".


                            Thanks Lawcruncher.
                            I think it's a fairly standard clause, I've seen these exact words several times. There are many farms in my area that didn't have direct access to a public highway and many seem to be from a time when livestock would have walked to market.


                              The wording is indeed standard.

                              The OP was asking if the use was only agricultural and I suggested it could not be because the word "animals" appeared. What the word does of course is confirm an agricultural use is included, not that the use is only agricultural.


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