Expressly recorded rights of way can be beneficial for the many people who make use of them. These express rights may be broad in nature or could be narrowly drafted to curtail the scope of the use, such as the nature of the user, the timings of the use, or the frequency of the use. However, the common feature is that they are clear and expressly articulated.
How does right of way affect landowners?
Express recordings of right of way can place onerous obligations on the landowner. The landowner does not cease to own the land even when express rights are granted. They remain entitled to use it, deal with it, fence it, maintain it and in many cases develop it. However, this work can be done only so far as doing so does not substantially interfere with the lawful exercise of the right of way. In essence, the landowner can use their land but not do anything that prevents, obstructs, or substantially interferes with the reasonable use of the right of way. Depending on the scope and physical positioning of the right of way, this could be problematic for a landowner and significantly impact their use of the area.
What happens when a right of way is no longer used?
Just because someone has the benefit of an express right of way doesn’t mean that they have to use it. Just as someone who benefits from a mobile phone does not have to use it to make calls or to message people. They may simply have a phone and keep it in a drawer for an emergency. A choice not to use a right of way doesn’t necessarily obviate the existence of the express right. The benefit of an express right is not lost merely because it is not presently needed or has not been used for a long period. It depends entirely on the facts and circumstances in each situation. The intention to abandon is assessed objectively.
How is the abandonment of a right of way assessed?
What a landowner seeking to argue abandonment needs to demonstrate is that the lack of use extends far beyond current and immediate use and that there is a firm intention for the use to never be pursued in the future.
Abandonment requires clear objective evidence that those benefiting from the right had a fixed intention that neither they nor any successor in title would ever use that right again. It goes beyond the immediate lack of use and considers intentions moving into the future.
If the reason for suggesting abandonment is simply that it is not currently needed, that will count against abandonment. If non-use is explicable by the absence of any current need to use the right, that supports the conclusion that there has been no abandonment for all time. There is an inference that the non-use is not permanent.
The fact that those benefitting from a right may presently have another means of access, or the current use of the land serviced by the express right does not require the right of way, is not enough. The question is whether the conduct, in perhaps securing another access, objectively demonstrates a permanent surrender of the express right for both the current user and future owners.
Even physical obstruction of a right of way is not necessarily enough to prove abandonment. Gates, brickwork and other blockages have all been regarded by the Courts as superficial and removable and which did not do enough to establish abandonment. The Courts are reluctant to infer abandonment where obstacles can be removed and the right revived at a future date.
How can the abandonment of a right of way be evidenced?
Given that the threshold for proving abandonment is so onerous, it is worth understanding what evidence would assist a landowner in proving the position.
Evidence can include:
- An express deed of release or other formal release of the right would assist
- Clear written statements or agreements recording an intention never to use the right again
- Conduct amounting to estoppel
- Acquiescence in substantial and permanent works inconsistent with any future use of the right
- In rare cases, a fundamental and irreversible change to the dominant land making future use impossible or wholly inconsistent with the original right
The essential question for a landowner is whether the conduct of the user has made it objectively clear that the current user and all future users would never use the express right of way again. Without clear evidence of that kind, abandonment is unlikely to be established.
The permanence of an express right of way should give landowners cause to pause before granting the same, as they may end up with land hindered or burdened by a right that is simply not used.
Our specialist team can support you with your legal rights and responsibilities so that you do not get caught out. Contact Catherine Gregson today for help.