Jurisdiction(s):
United Kingdom

Express easements: text over practical realities; rights of way are bidirectional—qualification barred all cottage access (Hambling v Wakerly [2023] EWHC 343 (Ch), England and Wales)

Published on: 17 March 2023

Published by a LexisNexis Property expert

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Article summary

Hambling and another v Wakerly and another [2023] EWHC 343 (Ch)

What are the practical implications of this case?

Despite the atypical and unconventional phrasing of the right of way in this dispute, the ruling remains of real guidance. It demonstrates how limited a role on-the-ground and locational realities may ultimately play in construing an easement where, on a strictly textual reading, the clause is considered adequately precise and definitive, so that practicality yields to the clarity of the written grant, as the text requires.

What are the principles involved?

The settled approach to interpreting a grant of an express easement requires the language to be evaluated against the matrix of facts and circumstances known, or taken to be known, to the original parties at the date of creation. Those surrounding matters may encompass the physical state and configuration of the land when the grant was made, and the exercise in construction should consistently be undertaken with a practical mindset, attentive to geographical context and the commercial realities at play.

What was the background?

This dispute addressed how to construe a right of way along a track running from the highway to a set of farm buildings. On one side...

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