Right of Way by Estoppel
A right of way can arise by the equitable remedy of proprietary estoppel. This is a right of way where there is no express grant of the easement, but where the vendor of a property misrepresented himself to the purchaser by making a statement that he would grant an easement. The purchaser, relying on this statement and thereby acting to his detriment would be entitled to an easement by proprietary estoppel.
Proprietary estoppel may create a proprietary interest in land where that interest has not been expressly granted by Deed, and where the person entitled to that interest has acted to his detriment because of representations made by the party against whom the estoppel would apply.
Such an estoppel may result in the grant of a legal estate, either a freehold or a leasehold, or the grant of a licence or an easement. This article is concerned only with the grant of an easement.
An easement by proprietary estoppel will be registrable following a court order. The court will look at whether the following conditions are present:
1. There should be a clear and unambiguous representation made by X giving rise to an expectation by Y that the easement would be granted. The representation may be by X's words or conduct. This condition is also met where X discovers he is mistaken about the reliability of his representations but fails to notify Y. If the representation is incorrect, but made innocently believing it to be correct, this might still be relied upon, but the court will take it into consideration.
2. Y must show that he relied on that representation, even if there are other reasons for him to continue to act to his detriment. Y's actions in continuing would normally be suggestive that he has relied on the representation.
3. Y must have acted significantly to his detriment, in reliance upon the representation. This may be the expense of buying the land, or improving the land.
Rights of Way Search
A Rights of Way Search would provide, amongst other documents, the Title Registers, Title Plans and retained Conveyancing Deeds for each property, which would disclose any court orders made in pursuance of a judgment for a proprietary estoppel easement. The Conveyancing Deeds may contain details of the representations made by an antecedent owner, in their recitals (statements of purpose for the Deed) at the commencement of any such Deed.
Rights of Way Search
Hoyl v Cromer 2015 (recent court decision)
The Court of Appeal held that a tenant had acquired an easement by proprietary estoppel.
1 Cromer Town Council allowed the tenant to believe it had the benefit of the right of way
and that their representation was valid.
2 The tenant had acted to his detriment in relying on that representation.
3 It was unconscionable for Cromer Town Council to deny the tenant his right of access.
Hoyl had a 99 year lease from Cromer Town Council but their access rights were limited for the purpose of intended use. In pre-contract negotiations Hoyl provided plans to support work it proposed to the basement flat of the property, to convert it into residential accommodation. The work required the stopping of an existing access and creating a new one elsewhere. Hoyl's lease did not provide sufficient rights of way to agree this. Planning permission was obtained but required car park access to the front of the building. The garden access at the rear was to be used as a fire exit. The plans were changed and agreed to by the council who provided a licence, and pressed Hoyle to complete the work as soon as it could, and supervised the work. When Hoyl agreed to sell the basement flat in the building, the agreed access by the council became an issue. Hoyl applied to the High Court for an order confirming Proprietary Estoppel. The County Court found in favour of Hoyl, that a proprietary estoppel had arisen. On appeal by Cromer Town Council to the Court of Appeal, that decision was confirmed.