The de-skilling of conveyancing

One thing that old fogies (like myself!) sometimes bang on about is the de-skilling of conveyancing since the golden days of their youth and that this and the growth of ‘conveyancing factories’ is the cause of all the ills in the modern world. However, the real problem with conveyancing is that the skills and knowledge necessary to conduct a conveyancing transaction (and also clients’ expectations!) have increased greatly since the golden days when conveyancing subsidised inefficient solicitors’ firms.

Just think for a moment about the wide range of diverse matters that a conveyancer needs to be able to advise upon in today’s market place. We need to consider, to name but a few:

  • various aspects of tax law – CGT; SDLT; sometimes inheritance tax;
  • the details of planning law and building regulations;
  • the intricacies of unmarried (and indeed married) couples buying property in their joint names;
  • the added problems where some loving relative provides part of the purchase price;
  • the criminal law involving money laundering and mortgage fraud;
  • wills and inheritance law;
  • contract law;
  • the complications of shared ownership properties;
  • the byzantine bureaucracy of help to buy;
  • and, oh yes, all the myriad aspects of property law!


And all this law keeps changing – remember the new easement ‘invented’ in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2015] EWHC 3564. And we need to consider easements very regularly. So we often have to check that there is a legal right of way to property being purchased.

But the complexities in the law relating to easements were recently illustrated by a file in the office. It involved the so-called rule in Harris v Flower (1904) 74 LJ Ch 127. An easement may be defined as a right attached to one piece of land (the dominant land) which allows the owner of that land to use the land of another (the servient land) in a particular way.

It is thus a right attached to a particular piece of land. If the owner of that land then acquires an adjoining piece of land, Harris v Flower states that the basic rule is that the right of way cannot be used to access that extra land. And yes, this is an old case, but it is still being followed – see for example Das v Linden Mews Ltd [2002] EWCA Civ 590, Macepark (Whittlebury) Limited v Sargeant [2003] EWHC 427 (Ch) and Giles v Tarry [2012] EWCA Civ 837.

And the basic rule that the right of way cannot be lawfully used to access that extra land applies even if the landowner accesses the benefitted land first and then goes onto the other plot. In Giles v Tarry, for example, Tarry had a right of way over a farm track owned by Giles for the benefit of Tarry’s “Paddock”. Tarry subsequently acquired an adjoining piece of land referred to as “the Green Land”. This did not have the benefit of the right of way, but Farmer Tarry came up with a clever idea. He would drive his sheep along the right of way into the Paddock. They would then leave the Paddock by a gate onto the adjoining public highway. There they would briefly tarry (sorry!), before going back from the highway into the Paddock again, and then from there to the adjoining Green Land.

It was claimed that this was a series of separate journeys – the first a permissible use of the private right of way to get to the Paddock, the next an exit onto an adjacent highway, and finally a journey from that highway to the Green Land via the Paddock? And so not a journey to the Green Land using the right of way!

The trial judge agreed with this analysis. “Usage of a right of way must be analysed in terms of actual movement, not the ultimate intention of the user”.

The Court of Appeal disagreed. Harris v Flower and its successor cases remained good law unless and until overturned by the Supreme Court or Parliament.

“…..we are dealing with one continuous operation, the object of which as the judge found, is to enable the sheep to graze the green land via the right of way… The whole sequence is, as the judge found, an artificial device. It therefore falls foul of the principle in Harris v Flower.” (per Lewison LJ, paragraph 57).

Of course, like all good legal rules, there are exceptions. So if the extra land is merely a small addition to the garden of the existing benefited land, then that would be OK – the extra use is deemed to be ‘ancillary and insubstantial’.

But, as in the file in the office, if another house is erected on that piece of extra land, then that would be different. This new house has no legal right of way to access it.

Fortunately, the conveyancers on both sides realised that there was a problem and the seller was able to negotiate a new grant from the owner of the servient land.

Not perhaps an everyday problem, but sorted by conveyancers with a minimum of fuss. So conveyancers, stand up and be proud of your expertise!

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