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The danger with rights which no longer appear to be in use

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“Nobody has used this old track for ages. I don’t need to worry about building over it as it’s clearly been abandoned.”

However tempting this might appear it could turn out to be a costly assumption as the mere fact that a legal right has not be exercised for a long time does not necessarily mean it has come to an end due to abandonment.

A recent Court of Appeal case considered how far the owner of an easement needs to go before the right in question can be deemed to have been extinguished under the rule of abandonment.

The case in question involved the sale of land which was part of land with the right to use an access route.

The transfer deed imposed a covenant on the part of the buyer to erect a fence on the boundary between the land sold to the buyer and the access route in a manner which would render block off the access route.  The buyer in this case had use of another access route to its property other than the access route it was required to essentially fence off.

The judge in the first instance case held that the covenant meant this was “one of those exceptional cases where it can be said that the right of way (insofar as it previously benefited the strip) has been abandoned or released by implication.”

However, the Court of Appeal overruled the lower court’s decision and found that the covenant to fence the boundary did not show an intention that the right of way was to be abandoned and never used again. It was of the opinion that the erection of a fence does not inevitably thwart the use of the access as it was possible for the covenant to be released in future and indeed the covenant could cease to bind the buyer.

It is clear from this ruling that abandonment is not something “to be lightly inferred” and “a major obstruction does not necessarily result in abandonment of a right of way”.

Where easements seem to the naked eye to be no longer in use (e.g. an overgrown track or impassable foot path due to its state and condition) it should not be assumed that they have been abandoned and no longer binding on the property.  There is no guideline as to how long non-use needs to be in order to establish abandonment.

The threshold for abandonment is very high and cited case law suggests “[the] person entitled to the easement must not only have stopped exercising it, but also to have demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.”

Abandonment of an easement is tremendously difficult to prove.  As such, it is always important that a thorough investigation is made by buyers of property (not just those buying land for development) to ensure there are no dormant rights which may impact on their use and enjoyment of the property.

Slater Heelis is experienced in all aspects of investigating and advising on rules of abandonment and rights of way. Call me on 0161 672 1440 or email jay.lafinhan@slaterheelis.co.uk if you have any concerns about rights in land and property deals.

Investigation at the start can save a lot of time, trouble and cost in the long run.

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