This post was contributed by Lucinda Pattison, Teaching Fellow for Undergraduate Laws.
It is well established that abandonment of an easement is hard to prove. Why? Well, the court’s view is why would a landowner give up rights over other land that benefit their own? This is not something that a landowner would do lightly, as there is clearly no advantage to them doing so.
The case of Benn v Hardinge (1992) 66 P & CR 246 is a good example of the court’s approach. Here an easement of a right of way that had not been used for 175 years did not give rise to a presumption that the easement had been abandoned. More recently, in 2014, the Court of Appeal in Dwyer v City of Westminster  EWCA Civ 153 found that non-use of a passageway for 40 years did not constitute abandonment.
In Dwyer the judgement of Lord Justice Briggs set out a summary of the law on abandonment, making reference to Gale on Easements and Odey v Barber  EWHC 3109 (Ch)  Chancery 175. The summary at paragraph 10 of the judgement was as follows:
“(a) whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;
(b) abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement;
(c) 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;
(d) non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.”
At paragraph 11 Lord Justice Briggs stated that “to those principles it is only necessary to add…..that where the non-user is explicable by reference to the absence of any need of the owner of the dominant land to use the right of way for the time being, this will fortify a conclusion that there has been no abandonment of the right for all time…”
The issue of abandonment was back in the courts more recently in the case of Annetts v Adeleye (2018) EWCA Civ 555. Here a right of way over an access road was granted in 1962 for a property called Summerhill. The access road belonged to a property called Salterns. The owners of Summerhill sold a strip of land (“the strip”), that formed part of Summerhill in 1988. In the transfer dealing with the sale, the owners of the strip entered into a covenant to erect and forever maintain a fence along the boundary between the strip and the access road. Subsequently, the owners of Salterns argued that the right of way that benefitted the strip had been abandoned on entering into the fencing covenant. The reasoning behind this was that the fence prevented access to the road from the strip.
The Court of Appeal held that the right had not been abandoned. The Court re-enforced the principle that whether a person intended abandonment of the easement is a question of fact. Therefore, the court is required to ascertain the objective intention of that person as reasonably perceived by the servient owner. The Court stated that what is needed is a clear intention from the dominant owner by way of their conduct that there would be no future use of the easement.
In this case several issues arose. Firstly, the fencing covenant was made only between the parties involved with the transfer of the strip. As the owner of Salterns was not a party to that transaction, they were not in a position to enforce the covenant. Also, at some point in the future the owner of Summerhill and the owner of the strip could release the covenant if they agreed to. In addition, the fencing covenant would not run to a future owner of the strip, as in theory positive covenants do not run with the land. Finally, there was nothing to prevent the owner of the strip from putting a gate in the fence to access the road and use the right of way, as the covenant did not prevent this. The Court observed that even if the covenant did prevent a gate from being put in the fence, this would not constitute abandonment.
The Court of Appeal held that the right of way in this case had not been abandoned but merely suspended whilst the fencing covenant existed. It could therefore be exercised again in the future if the strip and Summerhill came back into common ownership.
These cases are clear evidence that abandonment is very hard to prove. Whilst it is a question of fact in each case, it will take clear evidence of an intention to never use the right in the future, be it by the current dominant owner or a successor, for it to be considered as abandonment. In the meantime, the easement may just be suspended.
The Law Commission has considered reforms in this area of the law. In its report, published on the 8th June 2011, the Commission recommended simplifying and making clearer the rules on termination of easements by abandonment, alongside other reforms in relation to easements, profits à prendre and covenants. To date no new legislation has been passed but the Law Commission is assisting the government with a Law of Property Bill.