The Court of Appeal has found in this case that a purchaser who covenanted to erect and maintain a fence between its newly-acquired land and an accessway had not abandoned the right of way enjoyed over the accessway
A property named Summerhill benefitted from an expressly granted right of way over an access forming part of an adjoining property, Salterns. A strip of land within Summerhill was severed and transferred to the owner of a third property, known as Dawning.
In the transfer of the strip, the transferee (the owner of Dawning) covenanted with the transferor (the owner of Summerhill) to erect and forever after maintain a fence along the boundary between the strip and the access.
The proprietor of Salterns claimed that the transferee abandoned the right of way by entering into the fencing covenant.
The County Court held that:
- The covenant to erect and forever after maintain a fence meant that the right had been abandoned.
- The right of way would not revive if ownership of the strip passed to the owner of Summerhill again in the future.
Court of Appeal
The owner of Salterns appealed the County Court’s decision and the Court of Appeal overturned it holding that:
- The covenant to fence did not demonstrate an intention to abandon the right of way.
- There was a discontinuance of the right of way for the duration of the fencing covenant. The fencing covenant could be released by the parties to the covenant at any time.
Whether a person intended abandonment was a question of fact and depended on the objective intention of that person as perceived by the reasonable hypothetical servient owner. The dominant owner’s conduct must have made clear their intention that neither they nor any successor would in future make use of the easement.
The court also commented that, if the strip was reacquired so that it formed part of the transferor’s land again, then the strip could be used for the same purpose as before the transfer.
This case is a good example of how difficult it is to succeed in claiming abandonment of a right of way.
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