Allyson Colby explains why a permanent fence wasn’t enough to constitute “abandonment” of a right of way
The concept of “use it or lose it” does not apply to easements. However, it may be possible to show that an easement has been abandoned if it has not been used for a long period, or if the person entitled to it has done something to indicate that they have abandoned it.
For example, they may have altered their land in such a way that it can no longer benefit from the easement. But the person benefiting from the easement must also demonstrate a firm intention that they, and their successors in title, will never exercise the right again. The requirement, set out in Tehidy Minerals v Norman [1971] 218 EG 31, is notoriously difficult to satisfy.
In Benn v Hardinge [1992] 66 P&CR 246, the Court of Appeal refused to accept that an easement had been abandoned even though it had not been used for 175 years. More recently, in Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57, the Court of Appeal decided that a covenant to erect and “forever after” maintain a fence obstructing access to a right of way did not satisfy the requirement either.
Fencing
The litigation concerned the effect of a transfer of a small parcel of land which, together with other land, benefited from a right of way.
The right of way passed with the transfer, but the buyer had no need of it and the new fence, which he undertook to erect and maintain, prevented both parts of the dominant land from using the right of way.
The combination of the covenant, and the fact the buyer did not register the right of way when he registered the transfer, convinced the county court judge that the right of way had been abandoned.
The Court of Appeal has overturned the decision. It noted that landowners do not normally divest themselves of rights unless it is advantageous to do so, even if they have no present use for them. So abandonment will not be lightly inferred.
The court explained that the question whether a person intends to abandon an easement is a question of fact to be ascertained from the circumstances, by reference to what a reasonable hypothetical owner of the burdened land would perceive.
In this case, the owner of the burdened land was not a party to the transfer. His obligations were unaffected and he had no contractual right to enforce the covenant. It was also a positive obligation, which did not run with the land, and the covenant could be released at any time. So the hypothetical servient owner would not have concluded that the right of way had been abandoned.
Crossing point
One of the points that the court had to consider was whether the buyer would be within his rights to construct a gate or stile. If so, the right of way would remain accessible, negating the suggestion that it was being abandoned.
There are no hard and fast rules. In Hillman v Rogers [1997] PLSCS 347, Robert Walker LJ held that “a covenant to fence a boundary several miles long, crossing varied terrain, may require a different approach from a covenant to erect a much shorter fence, with specific materials in a position meticulously defined on an accurate large scale plan”.
The parties had agreed that the buyer would erect a chestnut paling fence, which was 3ft 6in in height. Richards LJ took the view that none of the provisions of the transfer suggested that the buyer could include a gate or stile in the comparatively short line of fencing along the boundary with the right of way. But Arden LJ took a different view, leaving us in limbo on this point.
However, they both agreed that the right of way had simply gone into abeyance. In Jones v Cleanthi [2006] EWCA Civ 1712; [2007] 1 EGLR 97 the erection of a wall pursuant to fire safety legislation did not extinguish a long leasehold tenant’s right of way to communal bins situated on the other side of the wall, because the wall could be pulled down.
If that was the case in relation to an obstruction built to comply with a statutory requirement, which was much more permanent than a fence, it was difficult to see how fencing, erected in accordance with a contractual obligation, could extinguish the right of way in this case.
Reunification
What would the position be if both parts of the dominant land were to be reunited? Conveyancers take note; both members of the court agreed that the right would “revive”, because it had been suspended, and not terminated.
To paraphrase Arden LJ, it would make precious little sense for the properties to be restored to common ownership and not to have the rights previously attached to them as a single unit, unless that was clearly the parties’ intention.
Surprisingly, the court suggested that this would also be the case if the dominant owner were to acquire the burdened land, citing Simper v Foley (1862) 70 ER 1179 as authority for the proposition that, on a subsequent sale of the burdened land, the right revives.
But, in that case, there was unity of ownership without unity of possession – and it is a long-established rule that full unity extinguishes an easement completely.
The Law Commission recommended abolition of the rule in relation to registered land: see Easements, Covenants and Profits à Prendre (Law Com 186) and the subsequent consultation analysis. But parliament has yet to implement its proposals.
Allyson Colby is a property law consultant
