How a Right of Way can be Lost

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Generally once an easement or right of way has arisen it will continue indefinitely unless it is extinguished or released.

In order for an easement or right of way to be extinguished then both the dominant land (the land with the right to an easement or profit) and the servient land (the land over which the right can be exercised) must both come into the common ownership and possession  in fee simple of the same owner. The principle here is that a person cannot have rights against himself. Once an easement or right of way is extinguished then it cannot be revived at a later date should both plots be separated and sold off to different purchasers.

An easement, right of way or profit can be expressly released by deed. Once this has been done then it is extinguished and cannot be revived.

An easement, right of way or profit can be sometimes impliedly released by the owner’s actions or in rare cases by the owner’s inaction. It can on rare occasions be established that a right or profit has been abandoned. However, this is a not easy to establish as at law there is no obligation on a party to exercise that right. Failure to do so will not automatically result in an easement or right of way being released due to the assumption that it has been abandoned. If the owner explains the non use he or she may still be regarded as not having abandoned the right. Failing to use an easement or right of way is not of itself sufficient and abandonment will not be inferred. The owner must make it clear that he or she is abandoning the right not just for himself but also for his successors in title.

In the case of Benn v Hardinge (1992) 60 P&CR 246 the Court of Appeal said that the failure to use the right for 175 years was not enough on its own to indicate an intention to abandon.

There is an assumption that the right has been abandoned where it can be shown that the original character of the dominant land has been changed to such an extent that the right of way has become unnecessary or impossible to exercise.

However, this is only a presumption and can be rebutted by the owner producing evidence to show that the original character of the dominant land can be restored at a later date and that the need for the right would be revived.

This is a complex area of the law that requires a scrutiny of the title deeds and actions or non action of the party claiming a right of way or easement and the actions of his/her predecessors in title.

Quinn & Co specialise in this area of the law and would be able to assist you in pursing or defending a matter. Should you wish to discuss your matter to see if we can help please contact Joseph Quinn on 01392  248858

 

This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

 

 

 

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