Lead Forensics
Prettys Solicitors Ipswich

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Abandoning a Right of Way

Proving abandonment of a right of way remains as difficult as ever

In a recent case a purchaser who covenanted to erect and maintain a fence between his newly-acquired strip of land and an accessway was held not to have abandoned the right of way previously enjoyed over the accessway.

The facts of Annetts v Adeleye 2018 concerned 3 different properties. The first property benefitted from an express right of way over an access that was located on the adjoining second property. A strip of land from the first property was severed and transferred to the owner of the third property, who covenanted with the owner of the first property to erect and forever maintain a 3’ 6’’ high fence along the boundary between the strip and the access, effectively blocking the use of the access.

A dispute arose over whether the right of way had been abandoned. The County Court decided that it had.

The Court of Appeal, in overturning the County Court decision, held that:

Why?

The legal principles that apply to abandonment of legal easements are based an assessment of the objective intention and conduct of the dominant owner (the party with the benefit of the right of way) as perceived by a reasonable servient owner (the access owner with the burden of the easement). In this case because the servient owner of the second property was not a party to the fencing covenant, it was not reasonable for the second owner to assume that the use of the right of way over their property by the third property owner was intended to be permanently abandoned by the erection of a fence. The court of appeal took the view that the use was merely suspended, as the two parties that had entered into the fencing covenant between themselves were free to renegotiate this in the future. Furthermore, in the absence of a clearly expressed intention, the court could not rule out the possibility that the severed land could be reunited with the first property at some point in the future, thus restoring the use of the right of way.

Points to note: proving a right of way has been abandoned through the implied conduct of the party with the benefit of an express right of way remains difficult – an express deed of release between the dominant owner and the servient owner could be used to overcome this uncertainty and would also allow an application to the land registry for the title documents to be updated to remove the right of way from the titles, if is the desired intention of the parties.

The above case summary is for information and does not constitute specific legal advice. For specific legal advice on removal of rights of way please contact commprop@prettys.co.uk

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