Oral Right of Way case decided by the Courts

The Court has held that a right of way was not extinguished by an earlier oral agreement between the benefitting and burdening landowners, in the case of Pezaro and another v Bourne and another, where the benefitting land was subsequently sold.

In this case a landowner agreed to informally end a right of way, by way of an oral agreement, which could not be exercised in any event due to fencing and had in practice never been used, to enable the developer to construct a dwelling on the site, including across the right of way.

However, the parties did not record the arrangement in writing and the developer did not seek to make the requisite Land Registry application to remove the title entries until such time as planning permission had been granted, by which time the adjoining landowner had sold the property to a third party who objected to the application and claimed the right of way. The developer applied to the Court for a declaration that the right of way had come to an end on the grounds of proprietary estoppel.

The Court held that the oral agreement was not binding on the new owner as the rights had not been formally removed from the title register before the property was sold for monetary consideration to the new owner. The previous owner could be estopped from exercising their rights but the new owner could not as they did not receive any notice of the release before they purchased the property.

This case demonstrates that it is vital that any agreements relating to land are recorded in writing and registered promptly at the Land Registry.

Posted on: 16/09/2019

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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