UK: Abandoning An Easement?

Last Updated: 23 July 2014
Article by Mike Lewis

An easement is a right to cross or otherwise use someone else's land for a specified purpose. The Court of Appeal considered abandonment of an easement in the recent case of Dwyer v Westminster City Council [2014] EWCA Civ 153.

Background

In 1922 land behind London's Edgware Road was sold to a company. Access to the site was via a passage way from the main road, and was the subject of an express grant of rights for pedestrians and vehicles.

The company closed in the 1960s, and the Council acquired the site for residential property development. During and following this redevelopment of the site, the access way had fallen out of use, and a trader, Mr Dwyer, working out of the adjacent Church Street Market blocked the access at either ends and began using the space as a storage depot for his business goods. The non-use of the access route continued for 40 years, and in 2007, having used the site since the sixties, Dwyer applied for and obtained title to that land by adverse possession.

Intending to redevelop the site, in 2010 the Council requested of Dwyer that he reinstate the access route as it was going to be needed. Dwyer refused, asserting that the Council had abandoned the easement.

The Judge at the High Court proceedings concluded that the route had been partially abandoned by "lessees and tenants, owners and occupiers", since the Council development of the sixties had been designed without any intention of the occupiers to make use of the right, but that "the purchaser and his assigns" had not forgone their right in regard to the access way.

Court of Appeal decision

The Court held that the Judge had been wrong in principle to conclude that there had been, or indeed could be, a partial abandonment of a right of way by reference to different classes of users. The right is attached to the land, and is not granted to a person or any class of person.

The Court then reasserted the principle that no abandonment of a right of way will be implied merely from non-use. This is a crucial and inflexible principle, and in referring to the case of Benn v Hardinge (1993) 66P&CR 246, the Court could exemplify the extent to which this principle will be taken, as in that case, a 175 year period of non-user did not amount to evidence of an intention to abandon!

Test

In dismissing Dwyer's case, the Court of Appeal has had the opportunity to show quite how reluctant the courts will be to infer that a party has forsaken rights over land in exchange for no benefit. They have also established the test, of four elements, which must be used in future cases considering the abandonment of easements:

  1. The intent to abandon is not subjective, but a question of fact drawn from the circumstances
  2. A reasonable owner of the servient land must have been shown that the dominant land's owner never intended for either himself, or his successors, to assert that right again
  3. Abandonment is not to be lightly inferred
  4. Non-user alone is not enough

Conclusion

Where an easement over land exists, the courts will be very reluctant to draw the conclusion that there has been an implied intention to abandon that right, and they will categorically not forsake that right based on nothing more than mere non-user, irregardless of the length of the period of that non-user.

If an easement is to be declared abandoned, it must be established that the owner of the dominant land evidenced a fixed intention that he would never again try and assert that right, nor would he ever attempt to transmit it to another. Furthermore, the burden of proof lies upon the party

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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