Annetts v Adeleye

Right of way – Abandonment – Covenant to fence – Right of way created by owner of access way in favour of purchaser of adjoining land – Strip of land being severed and sold to adjoining owner – Purchaser covenanting to fence boundary between strip and access way – Whether right of way over access way to strip of land abandoned by covenant to fence boundary – Appeal allowed A right of way over an access way to a strip of land was created in 1962 by the owner of a property called Salterns in Sevenoaks, Kent, who owned the access way, in favour of the purchaser of adjoining land (Summerhill). At that time Summerhill included the strip. By a transfer in 1988, the strip was severed from the rest of Summerhill and sold to the owner of the neighbouring property (Dawning). Under the transfer the purchaser undertook to erect and maintain a fence between the strip and the access way. The appellant sought to establish that the right of way had not been abandoned by the entry into the covenant to fence. It was common ground that the right of way passed under the transfer but the respondent argued that the purchaser simultaneously abandoned it by entering into the covenant to fence. The appellant denied that and argued that the judge was wrong to hold that the right of way, so far as it benefited the strip, had been abandoned. There was nothing m the transfer to rebut the implication `of the right of way. The county court held that this was an exceptional case where the right of way (insofar as it previously benefited the strip) had been abandoned or released by implication. The fact that no right of way was registered when the new title to the strip was formed suggested that this was what was intended. The judge went on to hold that the right of way would not revive if the strip and Summerhill were re-united under the name of a single owner since Summerhill had not reserved the right of way over the strip for the benefit of the land which was retained in 1988. Following the transfer, there was therefore no right of way for the benefit of Summerhill from across the strip. The appellant appealed. Held: The appeal was allowed. (1) The question whether a person intended an abandonment was always a question of fact to be ascertained from the surrounding circumstances. Abandonment depended on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement. The conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title should thereafter make use of the easement. Abandonment was not to be lightly inferred; owners of property did not normally wish to divest themselves of it unless it was to their advantage, notwithstanding that they might have no present use for it. Non-user was not by itself conclusive evidence that a private right was abandoned; the non-user had to be considered with and might be explained by the surrounding circumstances. The lack of any need on the part of the owner of the dominant tenement to use the right of way for a time would reinforce the conclusion that the right of way had not been abandoned. The court had to find the objective intention of the person alleged to have abandoned the right of way as reasonably perceived by the servient owner. It was irrelevant whether the servient owner actually knew about the transaction because the test was one of the reasonable perception of the servient owner and what he would conclude as to the dominant owner’s intentions: Dwyer v Westminster City Council [2014] 2 EGLR 5; [2014] EGILR 24 applied. (2) In the present case, there was a discontinuance of any exercise of the right of way from the strip to the access way for the duration of the fencing covenant in the transfer, but that covenant could be released by the parties to it at any time. A servient owner should generally be taken to know that the obligation to fence would not run with the land and bind any successor of the transferee. In this case, that was reinforced by the fact that the servient owner would appreciate that, as he was not a party to the transfer, he could not enforce any contractual obligation to which it gave rise. Even a major obstruction did not necessarily result in abandonment of a right of way. It was difficult to see how there could be an extinction of the right of way if there was a mere contractual right to fence the boundary which adjoined the access way by a non-permanent form of fencing. Moreover, the servient tenement, who would be a person most keenly interested if there was to be an abandonment of the right of way, was not even a party to the contractual arrangement in question. If the abandonment was effective, it might well lead to the result that the owner of the strip was not liable to contribute to the maintenance of the access way: Jones v Cleanthi [2007] 1 EGLR 97 followed. Carder v Davies (1998) 76 P&CR 33 considered. (3) If Summerhill and the strip were united in a single title, the right of access from the strip to the access way would enure for the benefit also of Summerhill. The effect of reunification was that the same rights would revive as existed prior to the splitting of the strip. On severance of the strip from Summerhill, the right of way which Summerhill had to the access way through the strip went into abeyance and was not terminated. The position was the same as if the dominant owner acquired the servient tenement. When he sold the servient tenement, the right revived: Wall v Collins [2007] Ch 390 followed. Zachary Bredemear (instructed by DWF LLP) appeared for the appellant; Justin Althaus (instructed by Batchelors Solicitors) appeared for the respondent. Eileen O’Grady, barrister   Click here to read a transcript of Annetts v Adeleye