Construction of deed of easement

When construing a deed, the court is entitled to take into account background circumstances to the grant reasonably known to the parties.

In Carpenter v Calico Quays Ltd ([2011] EWHC 96) Mr Carpenter ran a nursery business on land near a main road. Part of his land was compulsorily acquired by the Department of Transport when the main road was re-routed. As a  result, he needed an easement over land belonging to a neighbour. A suitable road with grass verges on land owned by a neighbour was in place and being used by Mr Carpenter from 1991. The deed granting an easement over ‘the Roadway’ was only entered into in 1997. The question was whether the easement was only over the tarmac road or was also over the grass verges. The terms of the deed and the plans attached to it did not settle the matter.

Floyd J proceeded on the basis that he was entitled to look at the background circumstances to the grant reasonably known to both of the parties (Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896). In this case the background circumstances included the fact that the access was intended to replace a previous means of access that allowed for use by both vehicles and pedestrians. Both the road and the verges were in place and were being used by Mr Carpenter at the date of the grant. Floyd J held that the right of way was over both the tarmac road and the grass verges.

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