It is almost impossible to establish that a person with the benefit of an easement has lost it by abandonment. This page deals with two recent cases that make this clear.

CDC2020 plc v Ferreira

[2005] EWCA Civ 611

The principle

Lloyd LJ, para 24:

    ".. the dominant owner must manifest an intention to abandon the right and, in order to do so, must make it clear that his intention is that neither he nor his successors in title should thereafter make any use of the right. abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property unless to do so is to their advantage, even if they have no present use for the property in question."

The facts

The grant of the right of way was in the following terms:

    "Together with full right and liberty in common with others entitled to the like right, to pass and repass with or without motor cars or other vehicles over the land coloured blue, for all purposes connected with the use and enjoyment of the three garages erected on the land coloured pink.."

The garages were demolished and replaced by ramps and car parks to which they led. The car parks were later demolished and three garages were later rebuilt once again on the land. There was a thirty-year gap during which there were no garages on the land. Held Notwithstanding these facts, the right of way had not been abandoned.

Williams v Sandy Lane (Chester) Limited

[2006] EWCA Civ 1738

The principle again

    "A right of way is not lost by non-user alone; even if the non-user has extended over many years. What is required is an intention on the part of the dominant owner to abandon the right" (Chadwick LJ at para 53).

First instance

The judge analysed the situation thus:

    ". . . In the instant case [1] there has been a period now approaching 30 years since the route was used. [2] At all material times there has been available to the occupiers of the property a means of access on foot to Sandy Lane (from the front door). [3] Following the cessation of use of the right the Claimants fenced their land so as to obstruct the right; [4] they removed the door from their property to which the path led; [5] they carried out earthworks which made walking along the path difficult if not impossible and [6] then allowed vegetation to grow in such a manner that the path can no longer be seen or walked upon."

On those facts he found that the right of way had been abandoned.

The appeal

However, that decision was overturned on appeal. Chadwick LJ at para 56 - 59:

    "56. Of the six matters on which the judge relied, it seems to me that those which I have numbered [1], [2], [4] and [6] are incapable, in themselves, of providing a basis from which to infer intention to abandon a right to use the secondary route. Item [2] provides the explanation for the 30 years of non-use, item [1]. In relation to item [4] it is important to have in mind that access to 20 Sandy Lane over the secondary route was not limited to access to the former back door: the back door was not on the boundary. Properly understood, item [4] provides the reason why use of the primary route was more convenient: it was more convenient to use the primary route once the back door had been moved. Item [6] is no more than a consequence of non-use. The inference of intention to abandon really rests on items [3] and [5].
    57. The evidence was that the earthworks carried out on the boundary adjacent to the north wall of the house at 20 Sandy Lane made it more difficult to use the secondary route; those works did not make use of that route impossible. The evidence suggested that the fence between 20 Sandy Lane and the Council's plot to the north was insubstantial: Mr Trevor Williams described it as "old plywood and railings" sufficient to prevent Miss Hibbitt's dogs getting out. There was no reason to think that the removal of the fence - if the appellants wanted to use the secondary route - would cause them any difficulty or even expense.
    58. This Court should be reluctant to disturb an inference as to intent which the judge has made after hearing the evidence and viewing the site. But, as it seems to me, this is a case in which we should do so. The judge took into account matters which were incapable, in themselves, of supporting an inference of intention to abandon. It is not clear whether he appreciated that; or what weight he gave to those matters. He does not seem to taken account of the insubstantial nature of the fence; and he seems to have thought (wrongly) that the earthworks made the secondary route impassable. And he failed to take into account the clear evidence of intention to assert the right to use the secondary route which is found in Miss Hibbitt's letter of 27 May 1984.
    59. For those reasons, I take the view that, in holding that the appellants had abandoned the right to use the secondary route, the judge came to the wrong conclusion."

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