A covenant requiring a landowner to erect a fence obstructing access to a right of way did not mean that the right of way had been abandoned
It is notoriously difficult to show that an easement has come to an end. It may be possible to show that an easement has been abandoned if it has not been used for a long period. But, in Benn v Hardinge [1992] 66 P&CR 246, non-user for 175 years was insufficient because the court took the view that owners of property do not normally divest themselves of rights unless it is to their advantage to do so, even if they have no present use for them. Alternatively, the owner of servient land may be able to point to specific acts by the dominant landowner that prevent his use and enjoyment of an easement, or show that the dominant land has been so altered that it can no longer benefit from the easement. However, the dominant landowner must have demonstrated a firm intention that he, and his successors in title, will never exercise the right again.
Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57 concerned a right of way to a strip of land via an access way that ran along the length of the strip. The right of way was granted to the purchaser of a parcel of adjoining land, which included the strip. In due course, the strip was severed from the adjoining land by a transfer to the owner of neighbouring property. The right of way passed with the transfer but the new owner of the strip undertook to erect and maintain a fence separating the strip from the access way.
The judge in the county court decided this was an exceptional case in which it could be said the right of way had been abandoned or released by implication, not least because the covenant to maintain the fence was expressed to be “forever”.
It is notoriously difficult to show that an easement has come to an end. It may be possible to show that an easement has been abandoned if it has not been used for a long period. But, in Benn v Hardinge [1992] 66 P&CR 246, non-user for 175 years was insufficient because the court took the view that owners of property do not normally divest themselves of rights unless it is to their advantage to do so, even if they have no present use for them. Alternatively, the owner of servient land may be able to point to specific acts by the dominant landowner that prevent his use and enjoyment of an easement, or show that the dominant land has been so altered that it can no longer benefit from the easement. However, the dominant landowner must have demonstrated a firm intention that he, and his successors in title, will never exercise the right again.
Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57 concerned a right of way to a strip of land via an access way that ran along the length of the strip. The right of way was granted to the purchaser of a parcel of adjoining land, which included the strip. In due course, the strip was severed from the adjoining land by a transfer to the owner of neighbouring property. The right of way passed with the transfer but the new owner of the strip undertook to erect and maintain a fence separating the strip from the access way.
The judge in the county court decided this was an exceptional case in which it could be said the right of way had been abandoned or released by implication, not least because the covenant to maintain the fence was expressed to be “forever”.
The Court of Appeal has reversed the decision. It reminded the parties that abandonment is not to be lightly inferred and is dependent on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement.
The transfer of the strip did not involve the servient owner and the fencing covenant could be released at any time. Furthermore, if the strip were ever to be reunited with the adjoining land, which was not impossible, the right would then revive.
The court relied, in particular, on a previous decision of the Court of Appeal in Jones v Cleanthi [2007] 1 WLR 1604. In that case, the court ruled that a landlord, who erected a wall pursuant to fire safety legislation, had not extinguished a long leasehold tenant’s right of way to communal bins situated on the other side of the wall, because the wall might, at some point in the future, be pulled down. And, if that was the case in relation to an obstruction in the form of a wall (which was built to comply with a statutory requirement and was a much more permanent structure than a fence), it was difficult to see how fencing, erected in accordance with an obligation that was merely contractual, could extinguish the right of way in this case.
Allyson Colby is a property law consultant
