It is possible to lose an easement by ‘abandonment’, but that will usually require a relatively long period of non-use. However, a recent case shows how a short period of non-use can result in the loss of the easement – through estoppel.

In 1988 a right of way on foot was granted by deed. By 1999 the land over which the right of way had been granted had been converted into a car park, and the dominant owner had not objected (and took no steps to prevent the land from being converted into a car park). Both properties were then sold, and the new owner of the dominant land sought an injunction to reinstate the pathway and prevent parking (as well as damages for having been deprived of the use of the right of way). In response, the owner of the servient land (who had bought the property subject to the right of way) argued that the neighbour’s predecessor in title had acquiesced in the removal of the pathway and thus estoppel should apply. The court agreed.

The point to appreciate is that this decision was based on estoppel rather than on abandonment. The acquiescence of the dominant owner, so the servient owner believes the right will not be enforced, has to be distinguished from mere delay on the dominant owner’s part in enforcing the right. Mere delay would not end the easement, unless it became so long as to amount to abandonment; but, estoppel can apply over a relatively short time period.

In practice, there are many strips of land that have the benefit of easements, but where the servient land has changed in character so that, for all practical purposes, the easement cannot be exercised. It is those situations where estoppel may well apply. See note on Lester v Woodgate [2010] EWCA Civ 199 (access free at www.practicalconveyancing.co.uk) noted in [2010] SJ 22 June 33.