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It is very difficult to argue that someone has abandoned an easement. The
starting point is to say that abandonment will only be inferred if it can be
shown that the landowner had a fixed intention to never assert the right to
the easement.
In practice, the courts will be slow to infer abandonment because
they take the view that 'owners of property do not normally wish to divest themselves
of [such rights] unless it is to their advantage to do so, notwithstanding that
they may have no present use for it' (Gotobed, [1971]). Thus, simple non-use
(or not having any need to use the easement) will not of itself be enough to
show abandonment.
The general view is that an extremely long period is needed to show an
intention to abandon. In Ben [1992] the CA decided that 175 years of nonuse
was not sufficient to raise a presumption of abandonment (in this case,
there had been an alternative means of access and thus no need to use the
right of way).
The attitude of the courts is well illustrated by a recent case in which a
right
of way was granted in 1964 'for all purposes connected with the use and
enjoyment of the three garages… on the land'. Later, the three garages
were
demolished and replaced with a two-storey car park. The right of way
continued to be used to get access to that car park (even though such use
had been beyond that permitted by the 1964 easement). However, in due
course, that two-storey car park was itself demolished and then replaced
with three new garages. The question then arose as to whether the 1964
right of way was still in existence. It was held that it was and that the
easement had not been abandoned. As such, the case decides nothing new
but it does illustrate the difficulty of showing abandonment. CDC2020 v
Ferreira [2005] EWCA Civ 611; source: www.practicallaw.com/8-200-7982.
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July 2005 |
