Summary
As a recent case shows, it is very difficult to
establish that a right of way has been abandoned,
merely because it has not been used. This can be a
particular problem if the land apparently subject to
the right is being developed: does the developer
need to spend money to buy out the right or in
insuring against any claim that it still exists?
Facts
In 1964, a right of way was granted specifically
“for all purposes connected with the use and enjoyment
of the three garages”. The right did not benefit any
other land. Later, the garages were demolished and the
site of them was used instead as a ramp leading to a
car park. In 2002, garages were rebuilt on the same
site. The Court of Appeal held that, despite
30-odd years of not using the right of way for the
purpose for which it had been granted – because there
were no garages there – it had not been abandoned.
The right would only have been abandoned if the
person who had the benefit of it had made it clear at the
time of demolition of the garages that his firm intention
was that neither he nor his successors would ever make
use of the right again.
Discontinuous easements
This is just the latest in a
line of cases showing how difficult it is to establish that
a right of way – or any other easement which is not
used continuously – has been abandoned. In a
previous case, a right of way had not been used for
175 years, but it was still held that it had not been
abandoned. One particular point to watch out for arises
when a road, over which there is a private right of way,
is adopted as a public highway. If the road is later
stopped up – ceasing to be a highway – the private right
of way revives. Often on residential developments,
the initial rights of way granted to house buyers until the
roads are adopted are limited in time to avoid this issue.
Continuous easements
It is slightly easier to
establish abandonment of continuous easements, such
as rights of light. Rights of light are to particular
windows. If they are permanently bricked up, the right
may be lost. Similarly, if the building is redeveloped
without windows in the same position, the right may be
lost. Problems may arise if there is a gap between the
demolition of the old building and the construction of
the new.
Overriding easements
Sometimes it is possible for a
developer to clear a site of third party rights by ‘washing’
it through the local authority. Under the Town and
Country Planning Act 1990 s.237, if a local authority
appropriates land for planning purposes, restrictions
and other third party rights are overridden and are
converted into claims for compensation (payable, of
course, by the developer). This can be useful if the
rights are numerous, the beneficiaries are difficult to
trace or if they are proving resistant to negotiation. But,
of course, the developer does have to persuade the
local authority to co-operate.
Source
CDC2020 PLC v Ferreira [2005] EWCA Civ 611
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