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Rights of way –
forgotten, but not gone?

Rights of way – forgotten, but not gone?

Published: 1st November 2018
Area: Real Estate & Planning
Author: Pia Eames

Rights of way carry valuable property rights, which can unlock the development potential for those parts of private land which would otherwise be inaccessible.

Universities and colleges may have to grapple with easements which can form over their land, for instance where a campus is used routinely by individuals over a long period, potentially giving rise to private rights of way forming. Easements can also be created in numerous other ways, including by deed and statute.

Disputes relating to the existence or scope of a right of way can become complex and hard-fought. One argument which is used to try and limit the use of long forgotten rights of way is to assert that they have been abandoned – i.e. where the easement has not been used or enjoyed for a significant length of time. However, as recently demonstrated by two cases this year, these grounds are proving very difficult to apply in practice.

It is interesting that both cases have been referred all the way to the Court of Appeal, which demonstrates the value of these rights when the parties are prepared to go to great lengths (and expense) to have these matters finally determined.

In general terms, by itself, a failure to make use of an easement for a very significant time is not accepted as amounting to legal abandonment of the easement. Easements are valuable property rights and the courts do not accept that any person would lightly give up their property rights. For example, in one case, not using a right of way for some 175 years was still not considered sufficient to amount to abandonment.

In addition it is crucial to provide evidence of intention – i.e. that the person entitled to use the easement intended to abandon or relinquish that right completely.

It is this second requirement to show proof of the intention to abandon completely which has been tested again in each of this year’s cases.

In the first case of Annetts v Adeleye ([2018] EWCA Civ 555) the property known as ‘Summerhill’ benefited from an express right of way over an accessway on the adjacent land, ‘Salterns’. The owners of Summerhill sold part of their land (referred to in the transfer as “the Strip”) to the owners of other adjacent land, ‘Dawning’. It was agreed that the easement would pass under the transfer such that the owners of Dawning would now also have an easement over the accessway at Salterns. The transfer between the owners of Summerhill and Dawning also required the purchaser to fence and forever maintain a fence between the Strip and the accessway.

The owners of Salterns argued that the wording of the transfer was such that it evidenced an intention to abandon the right of way and, in the County Court, they succeeded.

However the Court of Appeal was not convinced, and held that the obligation to fence did not demonstrate an intention to abandon the right of way. The covenant to fence was in fact a contractual obligation between the owners of Summerhill and Dawning and had nothing to do with the owners of Salterns. Further, that contractual agreement could be revised or terminated at any time, and therefore should not be seen as evidence of abandonment of valuable legal rights.

The second case (which has also been appealed but the Court of Appeal decision is still awaited) is Roberts v Parker ([2018] EWCA 1206 (Ch)). In that case, a key question was whether the land now owned by Mr Roberts (the “Yellow Land”) still had the benefit of a right of way over a private road originally granted in 1923. In fact, a 1950 conveyance of the Yellow Land expressly noted that the owners of the Yellow Land “shall not be entitled to use the said private road”.

The court found that the wording of the 1950 conveyance was sufficient evidence of “permanent abandonment.” The court had careful regard to the particular factual matrix of that case, the wording of the conveyances and also the fact that the Yellow Land had become physically separated from the access way in any event. We wait to see whether the Court of Appeal is similarly persuaded!

This line of cases demonstrates how difficult matters can become (often years after an agreement is reached) about the way in which very valuable rights of access are to be interpreted.

Quite apart from the restricted way in which the courts will imply an abandonment of an easement, these cases also show how important it is to be very careful about the treatment of easements (of all types). Importantly, any agreement to create or release such rights should be carefully considered and documented so ambiguities do not arise in the first place.

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