Have you lost your way?

Have you lost your way?


Author: Cara Beveridge

If you stop using a right of way over adjoining land for a long period of time, then surely the easement must become obsolete and abandoned?

The answer is no - non-use even for very many years is unlikely to be treated as abandonment.  

For an easement to be abandoned, the person with the right must show a fixed intention that they will never assert the right to the easement at any time in the future. Failing to use it is not enough.  

Abandonment was considered in the recent case of Dwyer v Westminster City Council (2014).   

A block of land was conveyed in 1922 with a vehicular and pedestrian right of way from the main road over an adjoining passageway. The site included a large number of residential properties and the right of way benefitted the whole site.   

Subsequently the site was acquired by the Westminster City Council for council house development. The development had been designed without any intention that the residential occupiers should make use of the right of way.   

In the 1960s, just after the development was completed, Dwyer began using the passageway to store equipment for his market trader business. Both ends of the passageway were blocked off by a locked gate and door. It had effectively become an entirely enclosed storage unit across which no access between the main road and the site had been used for 40 years. In 2007 he obtained registered possessory title on the basis of adverse possession.  

In 2010, the Council requested that Dwyer reinstate the passageway so that it could exercise its right of way as it wanted to redevelop its land. Dwyer claimed that the right had been abandoned.  

The Court of Appeal confirmed that there had been no abandonment of the right of way.  It was a straight forward case of very long non-use of the passageway but that alone was incapable of supporting a conclusion that the right of way had been abandoned.   

The courts are reluctant to infer an intention to abandon a right of way because it is considered that property owners do not simply give up property rights where they have no present need to use them - unless they are paid to do so.    

About the author

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Cara Beveridge

Senior Associate

03700 86 6910

Cara is a real estate lawyer and has experience in acting for banks in relation to secured lending, investor clients and developers as well as providing assistance in corporate transactions.

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