A legal easement is a proprietary right that permanently binds the land over which it is exercised.There is no statutory jurisdiction to discharge or modify easements. Consequently, they subsist until they are released, abandoned or extinguished in some other way – sometimes by statute, but usually as a result of unity of ownership.
The release or abandonment of an easement is established by reference to the actions of the dominant landowner; those of servient landowners cannot of themselves extinguish the rights granted. For example, in Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 2 EGLR 11; [2009] 28 EG 86, the judge ruled that an easement continued in full force and effect, even though the servient landowner had partially obstructed a right of way.
A legal easement is a proprietary right that permanently binds the land over which it is exercised.There is no statutory jurisdiction to discharge or modify easements. Consequently, they subsist until they are released, abandoned or extinguished in some other way – sometimes by statute, but usually as a result of unity of ownership.
The release or abandonment of an easement is established by reference to the actions of the dominant landowner; those of servient landowners cannot of themselves extinguish the rights granted. For example, in Heslop v Bishton [2009] EWHC 607 (Ch); [2009] 2 EGLR 11; [2009] 28 EG 86, the judge ruled that an easement continued in full force and effect, even though the servient landowner had partially obstructed a right of way.
What then is the legal position if a servient landowner obstructs the route of an easement with the acquiescence or consent of the dominant landowner? In Lester v Woodgate [2010] EWCA Civ 199; [2010] PLSCS 71, the Court of Appeal had to decide whether the doctrine of proprietary estoppel can prevent a dominant landowner from pursuing a claim for interference with a right of way in such circumstances.
Proprietary estoppel is mainly concerned with cases in which a party acquires rights over another party’s property as a result of the latter’s conduct. However, the court could see no reason why the doctrine should not be applied where a party has interfered with an easement that crosses its own land.
Their lordships ruled that they must consider whether: (i) the dominant landowner’s conduct had encouraged the servient landowner to believe that the dominant landowner had waived the interference with his rights; (ii) in reliance on that conduct, the servient landowner had acted in a way that could be characterised as detrimental; and (iii) the causative effect of that conduct prevented the dominant landowner from enforcing his legal rights.
Their lordships answered all three questions in the affirmative. The servient landowner had relied on the dominant landowner’s acceptance of the obstruction of his right of way when formulating replies to preliminary enquiries before selling the servient land without notice of any pending disputes. It would therefore be unconscionable for the dominant landowner and its successors in title to seek to enforce and reinstate the right of way.
The court ruled that the estoppel barred not only the grant of an equitable remedy for interference with the easement but also the enforcement of the legal right. Consistently with this, the continued obstruction of the accessway did not constitute an actionable nuisance and no action for damages could therefore lie.
The Law Commission has suggested that the law on easements should be updated. If enacted, its recommendations will result in comprehensive changes to the law and welcome new rules that will enable landowners to apply for easements to be modified or discharged using a modernised version of section 84(1) of the Law of Property Act 1925, which applies only to restrictive covenants.
Allyson Colby is a property law consultant
