Questions re Easements and Covenents

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  • Questions re Easements and Covenents

    My wife and I own a freehold property which has a very large rear garden. We purchased it all together and have lived there over 30 years. We have a right of way to our home via a footpath/cycleway which runs about 20 metres to the main road. It was originally a lane leading to a field and was acquired by the local authority some years after our right of way was granted from developers who built a housing estate on the land to one side of our property. The right of way is worded in the following way,
    ‘together with a right of way with or without vehicles for all purposes connected with the property hereby conveyed in connection with its use as a private dwelling house over the accessway’ which I refer to above.

    There are 2 covenants firstly not to build within a certain height of overhead power lines and secondly not to build a property for the consumption of alcohol i.e. public house. We have no power cables or any wish to sell alcohol. We are surrounded by housing.

    My questions are.
    1. Is the right of way as written restricted to our home or does the right of way extend to our land as well?
    2. Do we need a positive easement to allow us to build?
    3. Will we have any other issues in particular connecting to public services as again there is nothing referred to in our deeds?

  • #2
    What is the problem with asking a local Conveyancing Solicitor, who can read the actual Deeds?


    • #3
      together with a right of way with or without vehicles for all purposes connected with the property hereby conveyed in connection with its use as a private dwelling house over the accessway’ which I refer to above.
      The right of way is for the benefit of all of the property, so erecting buildings on the land ought to allow use of the accessway to get to those buildings.

      if you are thinking of erecting another house on the land, there is now case law that the expression "a private dwelling house" does not mean a single private dwellinghouse.
      In that case a development company were seeking to build a number of houses in a large garden associated with the original house, but the owner of a neighbouring large property claimed this was in breach of the covenant to have a private dwelling house on the land.

      The judgment went in favour of the developers, because the judgment stated that each house erected was "a private dwellinghouse" and that the expression used in the covenant was not restricting the number of private houses, it was merely descriptive of the type of building that was permissible.
      Martin v David Wilson Homes Ltd, 28 June 2004 (Court of Appeal, Civil Division).
      The Court of Appeal has held that use of the singular article "a" in the phrase "a private dwelling house" does not carry any necessary implication of singularity. In this case, a covenant not to use any buildings on any part of a plot for any other purpose than as a private dwelling house did not restrict the number of houses on the plot to just one.
      The restrictive covenants will always need to be considered when erecting any buildings on the property, but there is no need to do anything other than obtain planning permission if building anything that is not already granted planning permission by the Town and Country Planning (General Permitted Development) (England) Order 2015.
      Most types of outbuildings are permitted development, although anything larger than 30 sq. metres will need Building Control approval.

      Any development that a property owner is lawfully allowed to do can be undertaken without worrying about things not mentioned in deeds.

      Sometimes with granted rights of way there is a plan showing the route of the right of way that may indicate that there is a single entry point onto the land granted that easement.
      The alternative is that entry to the property that has the benefit of that right of way can be taken from any point along that granted route.

      Only be looking at the original deed of grant would that aspect of the right of way be fully understood.


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