Two recent "right of way" cases in the United Kingdom serve as a reminder of the law in Bermuda.

The first case focused on a change in use of a property.

Mr. and Mrs. Newman owned a house next door to a bar owned by Mr. Greatorex, who had a right of way across the Newmans' yard, to gain access to the rear yard of the bar. Later, Mr. Greatorex converted the rear yard of the bar to a beer garden and claimed his bar customers could use the right of way, to access the beer garden. Unsurprisingly, the Newmans objected because of noise, smell and "other goings-on".

In 1921, the bar premises had been a fishmonger's store, which was granted the right of way across the Newmans' land, for the purpose of access with or without horses, carts and carriages "as now used by… (fishmonger) Edward Collinson".

The court found that when created in 1921, the right of way was used by trade customers and suppliers of the fishmonger, and not by retail customers, who used the front door of the store from the street.

Lawful use of the right was therefore limited to bar tradesmen only. Mr. Greatorex's bar patrons were retail customers and consequently had to stop crossing the Newmans' yard.

If you are changing the use of a property with a right of way, have an attorney check what the wording of the right actually means for you. If a right of way is in doubt, avoid significant expenditure, until you can be sure of the extent of the right. Conversely, if someone else is changing use of their property and has a right of way across your land, have an attorney check the wording of that right, as you may be able to stop potentially undesirable abuse of the right.

The second case involved the redevelopment of land.

Risegold Ltd. bought some land in London from Escala Ltd. The land had planning permission for demolition of the existing one storey industrial building and redevelopment with a five or six storey block, with commercial units at ground level and 24 apartments above.

Escala Ltd. retained some adjoining land and granted Risegold a right of way for Risegold to enter upon such part of the Escala's yard "... as is necessary for the purpose of carrying out maintenance, repair, rebuilding or renewal…" of Risegold's land "…subject to causing the minimum of disturbance and inconvenience…".

To carry out the redevelopment works, Risegold required use of the right of way across Escala's yard, to erect scaffolding and fencing and for the overhead swing of a crane. The parties fell into dispute about the extent of the right of way. Escala said that such use of the right of way was beyond what had been granted because Risegold was redeveloping its land and such was beyond "rebuilding or renewal" of the single storey industrial building. Escala was especially concerned that its activities would be disrupted for some 65 weeks.

Risegold applied to court for a declaration that it was entitled to cross Escala's yard in connection with redevelopment because such "redevelopment" was the same as "rebuilding or renewal" — and related not just to the single storey industrial building, but also to the rest of the land bought from Escala.

The court found that "redevelopment" had the same meaning as "rebuilding or renewal", on the basis that the parties must have contemplated that the existing building would not remain the same forever. Therefore, Risegold had its right of way over Escala's yard for purposes of erecting different buildings.

If you are buying or selling land with a right of way, carefully consider the words to be used and ensure that they actually say what is intended. An attorney can assist with providing wording to align with your intention.

Attorney Neil Molyneux is a member of the Property Practice Group of Appleby. A copy of this column is available on the firm's web site at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.