Sommer and Another v Sweet and Another: CA 10 Mar 2005

The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for rectification.
Held: The appeal failed. The restriction on rectifying the register contained in section 82(3) Land Registration Act 1925 does not apply to rectification ‘for the purpose of giving effect to an overriding interest or an order of the court’. Moreover as that subsection and section 70(3) Land Registration Act 1925 both show there is no prohibition on noting an overriding interest on the register.
Lord Justice Clarke The Vice Chancellor Lord Justice Parker
[2005] EWCA Civ 227
England and Wales
Appeal fromSweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
MentionedCelsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
CitedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
CitedE R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
CitedBirmingham Midshires Mortgage Services Ltd v Sabherwal CA 17-Dec-1999
An equity arising from a proprietary estoppel is not an ‘equitable interest’ capable of being overreached pursuant to section 2 of the Law of Property Act 1925. . .
CitedShiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
CitedSaeed v Plustrade Ltd CA 20-Dec-2001
The court considered a parking management scheme imposed by freeholders on an estate. The result would be to reduce the number of parking spaces from 13 to 4.
Held: (Sir Christopher Slade) ‘The lease in terms conferred upon the lessee ‘the . .

Cited by:
CitedAdealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
CitedChaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .

These lists may be incomplete.
Updated: 22 January 2021; Ref: scu.223500