The cost of neighbour disputes

Dickinson v Cassillas [2017] EWCA Civ 1254

Introduction

We all know that neighbour disputes should be resolved amicably without resorting to court proceedings, but this is not always possible. However, as this case shows, the costs of going to litigation can be high. The case does also, however, give conveyancers an insight as to how the Court of Appeal might interpret the kind of provisions commonly found in plot sales of properties on housing estates.

The Facts

The parties owned adjoining houses in Greater Manchester. The flank wall of No.96, owned by Mrs Cassillas, was built along the boundary line with No.98, owned by Mrs Dickinson. The gas and electricity meters for No.96 had been set into that wall by the developer and could be read only by going onto No.98. Mrs Dickinson considered that Mrs Casillas had no such right to go on to her land nor had she a right to inspect the wall to see if any repairs were needed. She also objected to the gutters on a short extension to the porch of No.96 overhanging the airspace to her property.

The houses had been built by a common developer and the transfers of the two houses were in the same form. The rights conferred for the benefit of the owners of No.96 over the rest of the estate (including No.98) were contained in the First Schedule. Paragraph 3 provided:

“3. To erect and maintain roof verges eaves gutters and downspouts on buildings for the time being erected on the property transferred so that the same overhang and discharge surface water onto adjoining land included in the said estate …”

Paragraph 4 provided:

“4. To enter with workmen tools and materials on adjoining land included in the said estate for the purpose of effecting such maintenance repair and decoration of the property transferred as may with more convenience be dealt with by access from the said adjoining land.”

The Claimant commenced proceedings seeking a declaration as to her rights and an injunction to prevent the Dickinsons infringing them. Recorder Khan found in favour of her on all points. The Dickinsons appealed.

The Court of Appeal Decision

David Richards LJ (with whom Longmore LJ agreed) dismissed the appeal.

As far as the guttering was concerned, Paragraph 3 of the First Schedule gave a right of overhang not just in relation to the house as originally built, but for ‘the buildings for the time being erected on the land.’ This thus included the extension to the porch.

Although there was no express right to inspect the state of repair, the Court held that Mrs Casillas was entitled to have access for the purposes of inspection, as it was an ancillary right that was reasonably necessary to the exercise of the express right of access for the purpose of maintenance.

No express right of any kind had been given in relation to the meters. However, the Court of Appeal agreed that such a right should be implied. As David Richards LJ said: ‘… the meters were positioned by the developer on the boundary wall. It cannot have been intended that the purchaser of No.96 … would be unable to read the meters. … The legal position is clear and was recently and authoritatively restated by Lord Neuberger in Moncrieff v Jamieson [2007] UKHL 42 at [113] where he referred to:

“a general and well established principle which applies to contracts, whether relating to grants of land or other arrangements. That principle is that the law will imply a term into a contract, where, in the 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.”

This is a clear case for the application of this principle.

Comment

A clear example as to how the Courts will interpret provisions to give effect to the intention of the original parties. And as far as the costs were concerned, the Defendant had been ordered to pay them. This order was also upheld by the Court of Appeal, even though those costs were ‘well over £200,000’. Matters of principle can be very expensive.

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