Failure to Register Renders Property Inaccessible

When the owner of a property failed to register a right of access, trouble was in store.



The claimant owned a property (number 37) which was separated from the property next door (number 35) by an alleyway. This was owned by the owner of number 35. After the claimant acquired number 37, which was a shop, he redeveloped the upper floor to create two flats.



Number 35 had a wooden staircase going up to the flat above it and this was situated in the alleyway. The owner of number 37 agreed to replace this with a more substantial metal staircase on condition that this could be extended across the alleyway to give access to the upper floor of number 37. This provided the only means of access to the flats at number 37 once the redevelopment was complete.



The owner of number 35 later sold his property. The workmen acting on behalf of the new owner cut the connection across the alleyway, rendering the flats at number 37 inaccessible.



The owner of number 37 claimed that he had a right of way over the staircase and the link between the two buildings. There was no argument that he had a right (under the doctrine of ‘estoppel’) to an easement over the staircase and the extension to it when number 35 was owned by the previous owner. The question was whether the new owner of number 35 was bound by the previous owner’s arrangement.



The first problem was that no right over the staircase had been recorded in the title documents at the Land Registry. The owner of number 37 claimed that he had an ‘overriding interest’ in the land which bound the new owner of number 35, or that the new owner was bound by a ‘constructive trust’ which passed with the contract of sale when he purchased number 35.



The arguments on each side were technical and turned on whether the owner of number 37 could show that he had been in ‘actual occupation’ of the staircase and the link across the alleyway.



The Court of Appeal ruled that the owner of number 37 was not in actual occupation of the staircase and the link and could not therefore require the owner of number 35 to give him access.



Because he had failed to register his right of access to the stairway, the owner of number 37 ended up with a landlocked property.