Hotchkin v McDonald & Ors

Hotchkin v McDonald & Ors

The right of way granted by the 1965 conveyance is to be construed as available for such purposes as may be permitted following any discharge or modification of the restriction on use of the Manor House by the Lands Tribunal. The lawful use of the right of way is linked to the lawful user of the Manor House, and if the user covenant is modified or discharged, the right of way extends to the modified or new lawful use.

Parties
Claimant/appellant: Neil Hotchkin; Defendant/respondent: Ian McDonald; Defendant/respondent: Susan McDonald; Defendant/respondent: Allied Dunbar Pension Services Ltd
Jurisdiction
England and Wales
Judgment Date
20 April 2004
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Easements, Restrictive Covenants, Interpretation of Conveyances, Modification of Covenants
Property Law Land Law Easements Restrictive Covenants Interpretation of Conveyances Modification of Covenants

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Parties

Neil Hotchkin

Claimant/appellant

Ian McDonald

Defendant/respondent

Susan McDonald

Defendant/respondent

Allied Dunbar Pension Services Ltd

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the right of way granted in the 1965 conveyance can be used for purposes permitted after modification or discharge of the restrictive covenant by the Lands Tribunal
  2. 2 Whether the scope of the right of way is fixed as at the date of the 1965 conveyance or can change with lawful modifications to the user covenant

Ratio Decidendi

The right of way granted by the 1965 conveyance is to be construed as available for such purposes as may be permitted following any discharge or modification of the restriction on use of the Manor House by the Lands Tribunal. The lawful use of the right of way is linked to the lawful user of the Manor House, and if the user covenant is modified or discharged, the right of way extends to the modified or new lawful use.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the owners of the Manor House are entitled to use the right of way for such purposes as may be permitted following any discharge or modification of the restriction on use by the Lands Tribunal
  • Costs as agreed