Question: Will an easement (such as a right of way or right of light) ever be extinguished by abandonment?
Jonathan Seitler QC says no.
This is for five reasons:
1 Because easements can be valuable property rights and the general principle, as you know Miriam, is that owners of property are not presumed to wish to divest themselves of a valuable right unless it is to their advantage to do so – even when they have no present use for it: see Buckley LJ in Gotobed v Pridmore (1971) EG 759. So abandonment is not to be inferred lightly.
2 Because if, as is the position in the law of contract, it is not possible for a party to a multilateral arrangement unilaterally to abandon its benefit – as per Collin v Duke of Westminster [1985] QB 581; [1985] 1 EGLR 109 – there is no reason that there should be any different rule in relation to easements. In contract law, it is only where there has been a mutual release, or circumstances where the other party has acted in reliance on the alleged abandonment so as to found an estoppel, that benefits under a contract can be unilaterally renounced.
3 Because it is well established in law that non-use in and of itself will not suffice for extinguishment. Losing the easement is such a severe outcome that the law requires it to be shown, in order to establish an abandonment, that the person with the benefit of the easement (known as the dominant owner) had a fixed intention never, at any time in the future, to assert the right to the easement or to attempt to transmit it to someone else: see Tehidy Minerals Ltd v Norman [1971] 2 QB 528 at [553] and Odey v Barber [2008] Ch 175 at [103].
Only an act clearly indicating a firm intention that neither the owner nor its successors will make use of the easement in the future will suffice.
And the burden of proving this will be on the party asserting the abandonment.
The case law is therefore replete with examples of long periods of non-user where the court has upheld the continued existence of the easement. For example, in Benn v Hardinge (1992) 66 P&CR 246, the non-use of a right of way continued for 175 years, but this did not raise any presumption of abandonment because an alternative means of access had meant that there had been no occasion to use the right of way.
You can’t say I didn’t tell you the case law was against you.
4 Because if the dominant owner has no current need for use of the easement and does not object to the servient owner’s act of obstruction and interference with that easement which temporarily renders the exercise of those rights difficult or impossible, it would be undesirable if such general and good neighbourly conduct could not be indulged in for fear of losing those rights for all time: see Stuart Smith LJ in Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259 at 262D.
5 Because the non-user can often be (and usually is) explained by the fact that the dominant owner had no need to use the easement, in which case it is entirely unfair that it should lose it for all time: see, for example, Williams v Sandy Lane (Chester) Ltd [2007] EWCA Civ 1738; [2007] 1 P&CR 27.
Even certain positive acts which might have indicated an intention to abandon have been held not to suffice: in Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57 a purchaser who covenanted to erect and maintain a fence between its land and an accessway had not abandoned the right of way enjoyed over the accessway. The fencing covenant was contained in a contractual arrangement to which the servient owner was not a party. The servient owner could not enforce the fencing obligation and it had no effect on the servient owner’s obligations regarding the access. The parties to the contractual arrangement could release themselves from their obligations at any time. So it was held that a hypothetical servient owner would not have concluded that the right of way had been abandoned. There was a discontinuance of the right of way for the duration of the fencing covenant but not an abandonment.
An earlier example is CDC2020 Plc v Ferreira [2005] EWCA Civ 611; [2005] 3 EGLR 15 where a right of way had been granted for all purposes in connection with three garages. Subsequently, the garages were demolished and replaced with a car park. The dominant owner continued to use the right of way unlawfully, because it was no longer in connection with the garages, but no objection was made. When the car park was purchased for redevelopment, it was demolished and new garages were built on the site of the old ones. The court held that the developer continued to have the benefit of a right of way, despite the period of non-user and the act of demolition.
Miriam Seitler says yes.
Here are five reasons back:
1 Because it is inherent in the nature of an easement that it is capable of benefiting the dominant land and a fundamental principle that a restriction cannot be imposed without a corresponding benefit. Therefore, if a change is made to the dominant land, or the use of it, such that it can no longer be said that the dominant land is benefited, the easement should not survive. That is just logic based on principle.
2 Because it is important that the existence of legal rights accurately reflects the actual use of land. The Law Commission, in its report Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327), commented that an impossibly high threshold for extinguishment of easements by abandonment has the effect of detaching the legal position from the reality. It is not desirable for land to be burdened by rights that are obsolete. This is reinforced by the fact there is no equivalent to section 84 of the Law of Property Act 1925 in respect of easements; so without the agreement of the parties, the law provides no mechanism to modify or discharge obsolete easements. A working law of abandonment of easements fills that gap. The position also jars with the relative ease with which a party can acquire easements by prescription.
3 Because, certainly when it comes to continuous easements such as rights of light, the threshold for abandonment is not impossible to meet. In respect of continuous easements, it is easier to establish that the dominant owner had the necessary intention to divest himself of the right.
For example, in Moore v Rawson (1824) 3 B&C 332, the claimant pulled down his wall, in which there were some ancient windows, and rebuilt it as a blank wall. Fourteen years later the defendant erected a building in front of this blank wall. Three years afterwards the claimant opened in the blank wall a window in the place of one of the ancient windows, and sued the defendant for obstruction. The action failed, the court holding that the claimant had abandoned his right: “If a man pulls down a house and does not make any use of the land for two or three years … he may be taken to have abandoned all intention of rebuilding the house, and consequently the right to the light has ceased.”
4 Because actually when you look at it, the case law on abandonment does not show a consistent picture. It is far from all one way. In particular, some of the older cases suggest that the test for abandonment can in practice be satisfied and that non-user for significant periods is good evidence in support of that.
Ultimately it is a question of fact based on an objective assessment of the circumstances. The cases in which the test has been satisfied are usually where the court has found there has been some fundamental change to the dominant tenement.
In Crossley & Sons Ltd v Lightowler (1867) 2 Ch App 478 it was successfully argued by the claimant that a right to foul a stream with the refuse of dye-works had been abandoned, the dye-works having been shut up and abandoned for nearly 30 years.
In Williams v Usherwood (1867) 2 Ch App 478, two houses were built with a shared driveway between them. The original owners of the houses were granted rights of way over the parts of the driveway that each did not own. A fence was then erected separating the driveway from one of the owner’s houses. It was held that the other had acquired title by adverse possession of the half width of the driveway and the right of way over the other half had been abandoned.
Even where there has not been a fundamental change to the dominant tenant, often a subsequent agreement between the dominant and servient owners will have the effect of impliedly releasing the parties from the previous easement. In Robinson Webster (Holdings) Ltd v Agombar [2001] EWHC 510 (Ch); [2002] 1 P&CR 20 at [72] there was held to be abandonment of any pre-existing right of way when the dominant owner accepted a licence to use the way, such licence being terminable by one week’s notice and at a nominal fee.
5 Because the facts will often support a plea of estoppel, if the servient owner can show detrimental reliance. Sometimes the servient owner can show it was induced by reliance on the apparent abandonment by the dominant owner to incur substantial expense such that it would be unconscionable for the dominant owner to now insist on his strict legal rights.
A plea of estoppel was upheld in Lester v Woodgate [2010] EWCA Civ 199 where the servient owner had removed a pathway and built a parking space over the route of the dominant owner’s right of way. The dominant owner did not object to this and it was held that the dominant owner was now estopped from enforcing its right of way.
