By Christopher McCauley
Dickinson v Casillas [2017] EWCA Civ 1254
The Background
The parties are neighbours and have title to the freehold of their respective properties. The flank wall of the Mrs Casillas’ property is built along the boundary line with Mrs Dickinson’s property and the gas and electricity metres for Mrs Casillas’ property are built into that wall. The metres can, therefore, only be read from Mrs Dickinson’s property and Mrs Dickinson was of the opinion that Mrs Casillas had no right to go on to her property to read the metres or to inspect the flank wall to see if the repairs were needed.
Their properties were originally purchased from a developer, by their predecessors in title, and the freehold estate that is now owned by Mrs Casillas had originally been transferred from the developer to a Mr Duval and Miss Rains. At the date of that transfer, the house was still in the course of construction. The first schedule to the deed of transfer (‘the first schedule”) carried rights for the benefit of the transferees and their successors in title (which would include Mrs Casillas) and it was subject to rights and easements set out in the second schedule in favour of the developer and its successors in title to adjoining property (which would include Mrs Dickinson). The terms of the transfers of the two properties, from the developer to the original owners, were central to the issues in the case.
In 2007, Mrs Casillas built a porch to the front door of her property. The guttering on her porch would have overhung into Mrs Dickinson’s property but, before the porch was completed, Mr and Mrs Dickinson erected an iron and wood decorative feature which prevented the gutter being fixed. However, paragraph 3 of the first schedule (“paragraph 3”) allowed Mrs Casillas to erect gutters on buildings that overhang into Mrs Dickinson’s property. Mr and Mrs Dickinson argued, at first instance, that the right conferred by paragraph 3 only extends to the house and other buildings in the form they were constructed or were being constructed at the time of the transfer between the developer and Mr Duval and Miss Rains. Pursuant to this, they argued that the right does not permit Mrs Casillas to extend those buildings with gutters overhanging into Mrs Dickinson’s property (“the paragraph 3 argument”).
Decision at first instance
Pursuant to the above, Mrs Casillas issued proceedings seeking a declaration of her rights and an injunction to prevent interference with those rights.
At first instance, the learned Recorder found in Mrs Casillas favour and held that:
- Mrs Casillas was entitled to have access to Mrs Dickinson’s land for inspection, as it was an ancillary right that was necessary to the exercise of the express right of access for maintenance, repair and decoration. Further, the only reasonable reading of paragraph 4, of the first schedule (“paragraph 4”), was that it included a right for inspection;
- On a true construction of paragraph 4, Mrs Casillas was entitled to a right of access to read the meters;
- The paragraph 3 argument was inconsistent with language used in paragraph 3 and if it had been intended to be limited in this way it would have been drafted as “buildings in situ” or “buildings standing on the property” or used similar words. Further, the Recorder placed emphasis on the fact that the house was not completed by the 6th of April 1998 (the date of the transfer from the developer to Mr Duval and Miss Rains) so paragraph 3 could not be limited to buildings already erected at that date.
Mr and Mrs Dickinson appealed.
Court of Appeal
On appeal, Mr and Mrs Dickinson:
- Accepted that, under paragraph 4 of the first schedule, Mrs Casillas was entitled to enter on to Mrs Dickinson’s land with workmen tools, materials and workmen for the purpose maintenance, repair and decoration but submitted that this does not include a right to enter to inspect the property to see if maintenance, repair and decoration is required or to enable builders to provide estimates for works;
- Relied on an argument relating to the construction of the documents in support of the inspection issue;
- Relied on the paragraph 3 argument set out above.
Lord Justice David Richards, with whom Lord Justice Longmore agreed, delivered the decision of the Court of Appeal and held that:
- “A right of inspection to determine whether works of maintenance, repair or decoration are required is necessary to make effective a right of access to carry out those works;”[1]
- It would be absurd if there were no right to inspect the property;
- Even if not expressed in paragraph 4, a right of inspection is a necessary implication; and
- The correct reading of the word “maintenance’” in paragraph 4, was in accordance with the Oxford English Dictionary definition of the word “maintain:” meaning to “keep (a building, machine or road) in good condition by checking or repairing it regularly.”
Although, Lord Justice David Richards acknowledged that the words “maintenance, repair and decoration” of a house does not obviously include reading its meters; he held that:
- The developer had positioned the meters in the boundary wall and that it cannot have been intended that the purchaser of the property and their successors in title would be unable to read the meters;
- The following statement by Lord Neuberger in Moncrieff v Jamieson [2007] UKHL 42 should be applied: “a general and well-established principle which applies to contracts, whether relating to the grants of land or other arrangements. That principle is that the law will imply a term into the contract, where, in light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties;” and
- Even if the right of access to read the meters could not be spelt out from paragraph 4, it was implicit in the transfer.
Further, with regards to the positioning of the gutters issue, Lord Justice David Richards held that the words “for the time being” in paragraph 3 were ambulatory words which envisage, and was intended to encompass, a changing state of affairs. Further, he held that the words refer to the state of facts which may exist in the future as well as the state of facts at the present time and on that basis they extend to the porch or other structures whenever built.
If you require advice or representation, in a claim involving an easement you can instruct Christopher by contacting his clerks on 01483 539131 or clerks@guildfordchambers.com
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[1] At paragraph 16
