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Jumping Hurdles (And Fences) To Abandon An Easement

A recent Court of Appeal case has demonstrated quite how hard it is to abandon an easement.

In Annetts v Adeleye [2018] EWCA Civ 555, the Court of Appeal was asked to consider whether an express right of way had been abandoned by the actions of the parties involved.

A property (Summerhill) had the benefit of an express right of way over an adjoining property (Salterns) which was granted in 1962. In 1988, a strip of land was sold out of the Summerhill title to a third party who owned a property known as Dawning. The owner of Dawning had access to their land elsewhere.

As part of the transfer the owner of Dawning covenanted to erect and forever maintain a fence along the boundary between the strip of land and the access route. This meant in practical terms that the access route would not be accessible. The owner of Salterns claimed that this meant that the right of way had been abandoned in respect of the strip of land.

The Court of Appeal overturned the decision of the County Court below and held that the right of way had not been abandoned. This was down to a number of factors including:

• The fencing covenant could not be enforced by the owner of Salterns

• The contractual arrangement between the owners of Summerhill and Dawning did not affect the owner of Salterns and it could be released at any time in the future

• There was the possibility of a gate in the fence (although the court was divided on whether this particular covenant precluded gates or not)

The Court of Appeal held that the transfer of the strip suspended and did not extinguish the right of way.

Practical points

This case demonstrates how hard it is to abandon an easement. Past cases have indicated that even non-use for 175 years did not create a presumption that a right of way has been abandoned.

You therefore need to be very careful if you are tempted to ignore rights which might look as though they are no longer used or are impractical to enforce. Once a right of way is granted the court will generally take the view that a property owner will not give up a right even if they have no present use for it.

by Jen Morris
Consultant (Litigation)

Pierre Vannerem