150 year old agreement regarding doorway in boundary wall

Sea point

If two neighbours signed an agreement 150 years ago concerning a door in a boundary wall and both parties subsequently sold their houses, can the new owners today be bound by the agreement? If the agreement was signed in a personal capacity by the home owners 150 years ago and the agreement contains no mention of binding admins, executors, heirs or assigns; can the owners today be bound by this agreement if one of the owners finds the agreement in the attic ?

Pat Mustard

First, it would be impossible to answer this question accurately without looking at the relevant title deeds, as well as the agreement.

Secondly, it would be useful to know if the agreement was registered.

Thirdly, the nature of the agreement is important. If it was an agreement to paint the door for a fixed period of five years from 1865 and if that's all there was to the agreement, then it would no longer have any relevance now.

Furthermore, it would be important to know if the agreement comprised an easement, concerning the rights of dominant lands over servient lands.

Fourthly, you say that there is no mention of binding successors, heirs and assigns etc. It's not clear if this agreement comprised an easement but if it did, there was a previous view* to the effect that if words of limitation (successors, heirs, assigns) were not used, then the easement might only exist for the duration of the lives of the original grantees (who got the benefit on day one). This view arose out of English caselaw**. There is no Irish caselaw on the subject and the question was not settled in Ireland. Although the Land and Conveyancing Law Reform Act 2009 got rid of the need to use words of limitation, the Act does not have retrospective effect, meaning that the potential issue would remain in relation to an older deed. Therefore, as the original grantee must be dead by now, it seems that there is a doubt as to whether such an easement could survive.

*See pre 2009 Act versions of Wylie on Land Law.
** Can be quoted if necessary but see Wylie, as above.

Sea point

Thank you very much for your response, let me give you some more information which I believe from your answer would be useful to you in order to discuss this hypothetical example.

1) There is no mention of the agreement in the title deeds. And the agreement was never included in the title deeds.

2) The agreement was never registered.

3) The agreement gave a "permission" to create a doorway in a boundary wall to create alternative access to a garden for Party A, Party B had the right to block up the doorway with bricks by giving the necessary notice to Party A in writing. The doorway was used for 150 years. Today Party B would like to serve the notice and brick up the doorway.

4) There is no reference to any term in the agreement that would bind successors, heirs, and assigns. Party A died in 1890, and future owners and occupants of the house used the doorway for more than 130 years.

Would the successors of Party B have the right to block up the doorway ?

Or did the contract end/terminate in 1890 when Party A died ? and have Party A's successors acquired an easement by prescription by virtue of the fact that they have used the doorway unimpeded and uncontested for 130 years ?

Pat Mustard

That's interesting alright but unfortunately I have to reiterate that without looking at the agreement and all of the relevant deeds, it would be impossible to give an accurate answer to the question of whether the successors of Party B would have the right to block up the doorway.

Furthermore, there is also the question of how the right of way arose. Did the right of way arise on foot of the deed that you mentioned or had it arisen by prescription or otherwise?

In any event, it sounds like a job which would require hours of work to tease out the details just to prepare a brief for Counsel. And I would think that if that right of way had been used for such a long time, interference with it could easily result in costly litigation with no guarantee of recovery of legal costs, despite the outcome.

Mr. Incognito

Sounds like a side letter to me.

The law is pretty clear on the point that side letters are personally to the parties that sign them and do not bind successors in title.

I have authority on it somewhere around the office from a recent case I could dig out

Sea point

Mr. Incognito. Thanks for your response. Yes indeed it would be very useful to be pointed in the direction of an authority on side letters not binding successors in title. Much appreciated

Sea point

Pat Mustard. Thanks for your response. I'm just answering your question here:

"Did the right of way arise on foot of the deed that you mentioned or had it arisen by prescription or otherwise?"

The agreement I referred to gave Party A "permission" to build a doorway in the boundary wall with Party B's property. It does not make any reference to granting an easement or a right of way.

I assume that given the doorway has been used by Party A and his successors for over 150 years that a right of way has been created by prescription. Am I right ?

my3cents

Then on the other hand does regular use of the doorway over 150 years give the neighbor any right to continue using it?

Victor

Sea point wrote: »

The agreement I referred to gave Party A "permission" to build a doorway in the boundary wall with Party B's property. It does not make any reference to granting an easement or a right of way.

I think the intention of the parties has to be taken into account here, e.g. was this doorway for the purpose of access between the properties or was it for access from a public place to one of the properties, via another.

The time immemorial rule comes to mind, but strictly speaking, might not apply.

Pat Mustard

Sea point wrote: »

The agreement I referred to gave Party A "permission" to build a doorway in the boundary wall with Party B's property. It does not make any reference to granting an easement or a right of way.

I assume that given the doorway has been used by Party A and his successors for over 150 years that a right of way has been created by prescription. Am I right ?

There is not enough information to say for sure.

The nature of the right of way would have to be checked as precisely as possible.

It would be important to know if there is a deed of grant of right of way which has been granted by B to A, which deed may be contained with A's deeds.

In any event, it appears that blocking the doorway would be inconsistent with A's right of way.

Sea point

Victor, thanks for your response.

The doorway was created for the purpose of access from Party A's garden into Party B's property and then onto the public road.

nuac

While congratulating the posters above on their erudition, this seems to be a long established right of way.

Doubt if any court would agree to close it

Mr. Incognito

nuac wrote: »

While congratulating the posters above on their erudition, this seems to be a long established right of way.

Doubt if any court would agree to close it

Not sure if the required use is shown if it is discovered in an attic.

Uno my Uno.

Whatever it is, be it a side letter, easement, license or otherwise make sure it is resolved without litigation. This is precisely the sort of matter that takes ten years to be resolved, costs everyone hundreds of thousands of euros in costs thanks to a high court appeal and is the subject of pithy write ups in the Times.

Peregrinus

What Uno said.

It looks to me, based on very limited knowledge, that the agreement was personal between the parties, and it lapsed when the first of them died. Since then , there has been a wall (a party wall, I assume) with a door in it which (again, I assume) one party has used regularly to provide convenient access to the road, without any formal legal right to do so, but without objection from the other party.

Plenty of room for argument there over whether rights have or have not arisen by prescription, or by implied grant. Costs of litigating this vastly exceed the commercial significance. The present property owners should settle this as neighbours, by talking to one another, and by taking account of one another's positions. If they don't, they will end up regretting it more than they can possibly imagine.

Sea point

Peregrinus, thanks for your response.

The doorway was indeed created in a party wall, the doorway was used regularly.

There was no agreement creating a right of way by deed, the only document that exists in relation to the doorway is the personal agreement between Party A and Party B from 150 years ago only giving permission to create the doorway. Over the 150 years Party B and his successors have never objected to use of the doorway until now. Now Party B wants to block up the doorway and is relying on a clause in the 150 year old agreement which allows Party B to brick up the doorway after giving the necessary notice in writing. As you say the original signatories of the document are all dead more than 100 years and the document has no language that envisages binding future heirs, assigns etc. The document has been produced recently, it is not a registered document and has never been seen before by Party A's current successor. It was not included with the title deeds to Party A's property so neither Party A nor their solicitors ever seen this document before.

I whole heartedly agree that the way to resolve this issue is through negotiation, inevitably a legal discussion setting out both parties view of the set of circumstances will precede this....

godtabh

The right away extends to the door but what about crossing land?

SmartinMartin

Is the door being used regularly by party B?

Mr. Incognito

I knew I had the stuff on side letters here somewhere. I might add this is for discussion/ illustrative purposes only, is not and does not purport to be legal advice based on your particular cicumstances or in general.

2.1. In order for a side letter to be effective it must be entered into at the same time as the lease is executed, the contents of the side letter must impact upon the tenant taking the lease. Side letters do not bind successors in title not on notice of the letter.

2.2. The only exception to this rule is if a side letter had been executed as a deed.

2.3. On the basis of Hemingway v Dunraven [1995] 1 EGLR any concession relied on by a tenant from a past landlord can be rendered undone, void or voidable as the case may be.

3. Contract Law Position

3.1. No Consideration
For a side letter to be legally binding, consideration has to apply. This consideration must be new consideration and must relate directly to the side letter.

It need not be sufficient consideration and it may not be financial in nature but it must be there as one of the mandatory perquisites that create a document with legal effect.

Sea point

SmartinMartin. In answer to your question, Party B has never used the door since it only leads into Party A's garden.

Sea point

Godtabh, in answer to your question Party A uses the door in the boundary wall (between Property A and Property to enter Party B's property. Party A then crosses Party B's property to the public road.

SmartinMartin

Sorry, I meant party A. My question related to the use of the right of way, was it in use or had it not been used for years. It would have an impact on any court outcome. However it seems from your answer that it is used regularly.