Whose right is it anyway?

by Shobana Bala, Commercial Underwriter

Does abandonment of easements actually exist as a legal concept? The recent Court of Appeal decision in Annetts v Adeleye [2018] EWCA Civ 555 has demonstrated just how hard it is to abandon an easement in reality.

Background

This case concerned three different properties. The first property (Summerhill) benefitted from an express right of way granted in 1962 over an access that was located on the adjoining second property (Salterns). A strip of land from the first property was severed and transferred to the owner of the third property (Dawning) in 1988. The owner of Dawning had access to their land elsewhere. As part of the transfer the owner of Dawning covenanted with Summerhill to erect and forever maintain a 3’ 6’’ high fence along the boundary between the strip of land and the access route, effectively blocking the use of the access. The owner of Salterns claimed that this meant that the right of way had been abandoned in respect of the strip of land.

The county court judge held that 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”.

It concluded that (1) the covenant to fence justified abandonment of the right, and (2) the right of way would not be restored if title of the strip reverted to the owners of Summerhill.

The Court of Appeal overturned the decision of the County Court and held that the right of way had not been abandoned.

Whether a person intended abandonment was a question of fact and depended on the objective intention of that person as perceived by the reasonable hypothetical servient owner. The dominant owner’s conduct must have made clear an intention that neither that person nor any successor in title would in future make use of the easement.

Conclusion

  • The covenant to fence did not demonstrate an intention to abandon the right of way over the access benefitting the strip of land transferred;
  • The fencing covenant could not be enforced by the owner of Salterns;
  • The fencing covenant could be released by Summerhill and Dawning (the parties to the covenant) at any time.

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

Points to Note

  1. This case is a good example of how hard it is to show that an easement has been abandoned. 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. This is demonstrated in the 1992 case of Benn v Hardinge, where non-use of a right of way for 175 years did not create a presumption that a right of way had been abandoned.
  2. The Law Commission recommended in its 2011 report (‘Making Land Work: Easements, Covenants and Profits A Prendre’), that where an easement has not been used for a continuous period of 20 years, there should be a rebuttable presumption that it has been abandoned. However, these recommendations have still not made their way into statute or case-law.

Practical Points

  1. An express deed of release between the dominant owner and the servient owner could be used to resolve uncertainty as to whether there has been abandonment of easements. This in turn would allow for an application to the land registry for the title register to be updated and to remove the said right of way from the relevant titles, if this is in fact the desired intention of the parties.
  2. In light of the issues raised in this case, developers considering redevelopment where parcels of land have been split into several ownerships over time – should question if rights burdening the title are actually no longer used or if they are too impractical to enforce. Consider title indemnity insurance to assist your transaction and discuss your specific requirements with an experienced underwriter in our team.

To find out more about our products and services email: info@firsttitle.eu or call: +44 (0)207 160 8100. www.firsttitle.eu.

First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.

 

 

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