‘To establish abandonment of an easement the conduct of the dominant owner must… have been such as to make it clear that he had… a firm intention that neither he nor any successor… of his should thereafter make any use of the easement… Abandonment is not… to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it.’ (Gotobed [1971]).

This principle was confirmed in a recent CA case involving a house bought in 1975. The previous owners had used a track across neighbouring land to reach the backdoor on the northern side of their house. But, when they bought in 1975 the claimants moved the backdoor to the west side of the building, and then erected a fence so that it was no longer possible to make use of the old right of way. Thereafter they used the track to gain access by a different route to the new backdoor and also the rear of their garden. A developer bought the neighbouring land and argued that there was no longer a right of way. As far as the ‘old’ right of way was concerned, he argued that it had been abandoned. In respect of the ‘new’ (ie amended) right of way, he argued that there had not been the necessary acquiescence by the neighbouring landowner. However, the CA disagreed with both those arguments.

As far as the ‘old’ right of way was concerned, the fact that it had not been used for 30 years did not mean that it had been abandoned. A right of way is not lost simply because it is not used; there must be an intention to abandon it. Thus, if they wanted to, the claimant could remove the fence and start using the old right of way again. In respect of the ‘new’ right of way, there had been acquiescence in that the developer’s predecessor in title had known in 1984 that a right of way was being claimed.

This case therefore does no more than confirm established principles. But, one can have some sympathy with a developer in this situation. It turned out the land had been let since 1990 and therefore the developer (and his predecessor) had no direct control over the land. That, however, did not prevent time running. The moral, of course, is that developers must do everything they can to establish whether any adjoining properties do have rights over a site, especially since the seller of the land may not even be aware of the existence of a particular right of way. Williams v Sandy Lane [2006] EWCA Civ 1738. © Practical Lawyer