While the courts maintain a strict approach to abandonment of easements, Shona Ferguson explains how proposals from the Law Commission should make life easier for developers
Law Commission’s key proposals affecting termination of easements
- A rebuttable presumption of abandonment if an applicant proves 20 years of non-use.
- The Upper Tribunal (Lands Chamber) (“the UT”) should have jurisdiction to modify and discharge future easements as it currently does in relation to restrictive covenants under section 84 of the Law of Property Act 1925.
- The UT should only modify an easement if the modified interest will not be materially less convenient to the land benefitted, and no more burdensome to the land burdened.
- The UT should have the power to order that the interest take effect as a different kind of easement if reasonable and the applicant does not object.
- Where an easement is attached to a leasehold, it should be extinguished when that lease ends, but where it ends by merger with the freehold or surrender, the freeholder should be able to elect to keep the easement.
- The express variation or release of an easement should be a registrable disposition at the Land Registry so the register represents reality.
Among the many issues that can hamper a development, an easement has potential to cause particular problems. It can be binding even if it is not obvious or has not been used for years. Proving that an easement has been abandoned is notoriously difficult. A recent case has provided a further example of just how tricky this is and has tested the suggestion of “partial abandonment”.
The settled law
The law on abandonment is long settled: the dominant owner must have a fixed intention that neither he nor future owners should ever use the easement. This is a question of fact based on the circumstances.
The hard part is proving the intention. To quote Buckley LJ in Gotobed v Pridmore (1971) 217 EG 759, abandonment is “not to be lightly inferred”: without more, non-use for a long time will not be enough.
There is a distinction between “continuous” easements such as rights of light, enjoyed without intervention by humans, and “discontinuous” easements such as rights of way, which require human action in order to be used. If someone bricks up a window with no intention ever to open it again, it could easily be supposed that they intend the right of light to be lost; but for a right to park, how long must the space be left unused before the right is abandoned? What if the current owner of the dominant land does not own a vehicle?
Partial abandonment has not previously been considered substantively in court, but judges have mentioned the possibility. In Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259, Stuart-Smith LJ was “not persuaded that there is any logical or legal reason why there cannot be a partial abandonment of the full extent of an easement”. In that case, a 12ft-wide right of way, expressly granted for use by pedestrians and vehicles, was reduced by permanent obstructions so vehicles could not use it. In the event, the facts did not point towards abandonment, so the issue of partial abandonment was not considered further.
Abandonment by some, not others?
The Court of Appeal in Westminster City Council v Dwyer [2014] EWCA Civ 153; [2014] 2 EGLR 5 considered the issue of partial abandonment, after the judge at first instance held that the facts indicated an unusual form of it.
A passageway off Edgware Road in London, leading to industrial and residential premises, was subject to an express right of way granted in a 1922 conveyance. The site was acquired by the local authority in the 1960s for a council house development, resulting in the residential premises being demolished and replaced by new blocks with a new access route. The new occupiers had no reason to use the old passageway.
Henry Dwyer used the passageway to store items relating to his market trading business between the 1960s and 2010, unchallenged by the local authority. In 2007 he obtained registered title to the passageway based on adverse possession. While he was using the passageway, it was blocked at one end by wrought iron gates, corrugated iron sheeting, a rough line of brickwork and later by wooden shutters, and at the other end by locked doors made of wood framing and corrugated iron sheeting. It was effectively a fully enclosed storage unit for more than 40 years, until the local authority wanted to redevelop the site and use it for access.
The judge at first instance (unreported) interpreted the wording of the 1922 conveyance to mean that the right of way had been granted separately to two categories of users: (i) the purchaser of the freehold and their successors and (ii) the occupiers of the residential premises. Because the residential properties had been demolished and rebuilt – and the new design did not include use of the old passageway – the right was abandoned in respect of the second group, but not the first.
The Court of Appeal disagreed. The wording in the conveyance was simply an old-fashioned way of stating that the right attached to every part of the site, and the redevelopment of the residential premises was not relevant. It was not possible for a right to be abandoned in respect of one group of users and not another, because an easement benefits the land rather than the classes of people who use it.
Whether an easement can be partially abandoned thus depends on the interpretation of “partial”. Abandonment in respect of some type or quality of use may still be possible.
What does it take?
Having established that there was no partial abandonment, Briggs LJ in Dwyer had a choice between determining that the evidence of non-use by one group showed full abandonment, or that there was no abandonment at all. He chose the latter, on the basis that the obstructions could easily be removed.
If 40 years of acquiescence to a brick wall, iron gates, wooden doors and corrugated iron sheeting does not show an intention to abandon, what does? The Dwyer decision is not an anomaly. Even 175 years of non-use may not be enough without further circumstances pointing to an intention to abandon (see Benn v Hardinge [1992] 66 P&CR 246, where there was an alternative access).
It will depend on the circumstances, including how the easement was acquired, but the position may be summarised as Stuart-Smith LJ did in Snell: “No doubt, it must be a question of degree. The erection of a house or other substantial and permanent building, which completely defeats the right if acquiesced in by the dominant owner, would be taken as a clear intention that the right was being abandoned.”
Cases of abandonment should therefore be considered in the context of interference with easements and other forms of termination, such as by licence (the dominant owner consenting to a permanent obstruction of the easement) and frustration.
What can developers do?
Amid the uncertainty, what action can developers take to prevent an easement obstructing their plans? Thorough due diligence, both on paper and on the ground, should help to reveal many easements. If any are revealed, one option would be to try to reach an agreement with the dominant owner, albeit this might involve a payment.
On the other hand, negotiation with the neighbours should be avoided if a developer is considering buying insurance to cover their potential losses, as an insurer will usually require the insured party not to have approached the person with the benefit of the easement (if known). As with all insurance policies, the limitations and exclusions should be carefully reviewed: the insurer is also likely to require the policy not to be disclosed to anyone other than prospective purchasers, lessees and lenders (and their advisers), and worse, may exclude claims for rights which have been physically exercised.
Law Commission proposals
There is still hope for developers. The Law Commission’s 2011 report on easements, covenants and profits à prendre argues that abandonment should be easier to establish. It proposes, among other things, a rebuttable presumption of abandonment after 20 years of non-use, resurrecting a principle applied in older cases until Benn dispensed with it in 1992. The government is considering the report and has indicated that a decision is likely in 2015.
In Snell, Stuart-Smith LJ commented that where a dominant owner has no current need for an easement, “as a matter of good neighbourliness, an owner of land may well permit his neighbour to make use of the servient tenement for the time being”. Some believe a rebuttable presumption could lead to disputes as neighbours seek to protect their rights for fear of losing them. This seems to ignore the need to prove 20 years’ non-use to even establish the presumption – which could then be rebutted by evidence, such as there being another reasonable explanation for the non-use. Whatever the effect on neighbourly relations, such a reform will certainly be good news for developers.
Shona Ferguson is a professional support lawyer at Farrer & Co LLP
