If you own a property that benefits from a right (say, a right to way) and you do not use it for several years, will this mean that the right is lost? Case law has decided that it is possible for such a right to be extinguished because the owner effectively abandoned the use of the right.
In order to establish implied abandonment it must be shown that the owner with the benefit formed a fixed intention never to use the right again and had not passed the benefit to a third party. Failure to exercise a right is not, of itself, implied abandonment even after relatively long periods of discontinued use, for example over 20 years.
A recent decision in the Court of Appeal considered whether a long period of non-use and the demolition of the garages to which a right of way led was sufficient to prove that the owner intended to abandon that right. The case involved a right of way granted to the owner of three garages. The original garages were subsequently demolished and a two-storey car park erected. The use of the way for getting to the car park was unlawful because it was not permitted by the conveyance which granted the right of way. This use was later discontinued. No garages had stood on the site for more than 30 years when, in 2002, the buyer acquired the site for redevelopment. It wished to reconstruct the garages and begin using the right of way again.
Mr Ferreira contended that the right of way no longer existed since it had been abandoned when the garages had been demolished. The intention of the then owner had not been to use the right of way for gaining access to the garages but to use it illegitimately for access to the new car park. Mr Ferreira maintained that by constructing the car park the then owners had showed an intention to use the site inconsistently with garage use.
The court held that the right of way had not been abandoned. Whether or not a right has been abandoned has to be tested at the time of the acts relied upon as showing abandonment. It is not possible to refer to subsequent events. The owner with the benefit has to make it clear then that neither it nor any future owners should thereafter make any use of the right previously held. Abandonment was not to be inferred lightly since owners did not normally give away property unless this was to their advantage, even if they had no use for the property in question at the current time.
Here, substantial as the works of demolition of the garages and construction of the car park had been, they did not justify an inference that the then owner had intended to abandon the right of way forever so that neither it nor future owners could resume its exercise.
This case shows that the court will not lightly find that a right of way has been abandoned by an owner and clear evidence of the extinguishment of an easement would need to be demonstrated before the court would hold that a right had been abandoned.