The decision in the recent Court of Appeal case of Annetts v Adeleye  EWCA Civ 555 is a useful reminder of the principles that need to be established when trying to bring a successful claim for abandonment of a right of way.
The case concerned a right of way that had been granted in 1962 by the owner of a property (“Property A”) to the purchasers of a property on adjoining land (“Property B”). A strip of land within Property B, (“the Strip”) was later transferred to new owners in 1988. Upon transfer of the Strip, the transfer deed stipulated that the purchaser must “erect and forever after maintain a good and sufficient fence along the boundary of the Strip in order to separate it from the access road.” The purchaser subsequently erected a fence approximately 3 feet 6 inches high.
It was accepted by all parties that the right of way had passed to the purchaser of the Strip upon transfer; however, the appellant sought to argue that by entering into the covenant to fence, which resulted in the discontinuance of use of the right of way, the owners of the Strip had intended to abandon their right of way over the access road.
In order to establish whether a right of way has been abandoned, the court must determine the objective intention of the person said to have abandoned the right, as perceived by the reasonable hypothetical servient owner. In this case the court followed the principles set out in Dwyer v Westminster CC , in which the Court of Appeal had found that a right to access a passageway, which was blocked by a locked gate and door at each end, had not been abandoned despite it not having been used for over 40 years. Although the gates and doors were barriers to access, they could easily be removed to allow the right of way to be exercised again.
In Annetts v Adeleye, the county court (incorrectly) concluded that (1) the covenant to fence justified abandonment of the right, and (2) the right of way would not be restored if title of the Strip reverted to the owners of Property B.
The Court of Appeal reversed the county court decisions, finding that:
- The covenant to erect and forever maintain a fence did not prove an intention to abandon the right of way. There must always be a clear intention from the owner that neither they nor any successor would make use of the right in the future and this intention was not present on the facts of this case.
- Whilst there was a discontinuance of use of the right of way during the period of fencing, the fencing covenant was a contractual arrangement which could be discharged by the parties at any time. It could therefore not be assumed that agreement to the covenant justified a finding of abandonment.
This case emphasises just how challenging it is to prove abandonment of a right of way, even where an impassable obstacle (e.g. a wall) prohibits the use of the right of way for any given period of time. Even where a covenant to fence precludes the use of gates (which could infer an intention to permit continued access), the court will always examine the objective intention and in no circumstances will abandonment be inferred lightly.
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