Annetts v Adeleye

Abandonment of an easement is an objective question. The court must assess the surrounding circumstances and ask whether a reasonable owner of the servient land would perceive a firm intention that neither the owner nor successors would use the easement again. Abandonment is not lightly inferred, and non-use alone is insufficient.

A covenant to erect and maintain a fence does not, without more, establish abandonment. This remains so where the covenant temporarily obstructs access but can be released or varied. Whether the covenant permits a gate depends on its proper construction and the circumstances. If land is later reunited under common ownership, rights suspended by severance revive unless a contrary intention is clearly shown.

A right of way created in 1962 benefited Summerhill, which then included the Strip. A 1988 transfer severed the Strip from Summerhill and transferred it to the owner of Dawning. The transferee covenanted to use the Strip as a garden and to erect and maintain a fence along its boundary with the access way.

The Tunbridge Wells County Court held that the right of way benefiting the Strip had been abandoned or released by implication and would not revive if the Strip and Summerhill were later reunited. The appeal concerned abandonment, possible partial abandonment, and the effect of later common ownership.

Disposition. The appeal was allowed. The county court was wrong to conclude that the right of way had been abandoned and wrong to deny its revival on reunification.

1. Applicable test. The court adopted the principles summarised by Gale and approved in Dwyer v Westminster CC [2014] 2 P & CR 7. Abandonment depends on objective intention, assessed from the surrounding circumstances and as reasonably perceived by the servient owner. Conduct must make clear a firm intention that neither the owner nor successors will use the easement. Abandonment is not lightly inferred and non-use is not conclusive.
2. Effect of the fencing covenant. The hypothetical servient owner would have recognised that the transfer was an agreement only between the dominant owners and did not alter his obligations. He would also be taken to have some knowledge of the law, including that the contractual fencing obligation would not bind successors and could not be enforced by him as a non-party. Non-registration did not establish abandonment because the right of way could pass under the Law of Property Act 1925, section 62. The court held that the contractual covenant could be released and that the temporary, non-permanent fence did not show an intention to extinguish the right. Jones v Cleanthi [2007] 1 WLR 1604 and Carder v Davies (1998) 76 P & C R 33 supported that conclusion. The gas-pipe argument was unnecessary to decide, and Issue 2 therefore did not arise.
3. Ancillary use and the gate issue. The court rejected the suggestion that the Strip would necessarily be landlocked. It could be ancillary to Dawning, and nothing in the 1962 conveyance excluded ancillary use. Arden LJ additionally considered that the covenant could permit a gate or stile, having regard to the stipulated fence and the surrounding circumstances. Richards LJ disagreed on that alternative construction and considered that the covenant excluded a gate on these facts. That difference did not affect the result because he agreed that the covenant did not amount to abandonment.
4. Reunification. If Summerhill and the Strip returned to common ownership, the same rights that existed before severance would revive. The right benefiting Summerhill had gone into abeyance rather than being terminated. Arden LJ relied on Wall v Collins [2007] Ch 390 and Simper v Foley (1862) 2 J & H 555; 70 ER 1179. The authority concerning restrictive covenants on unity of ownership, Re Victoria Recreation Ground, Portslade’s Application (1979) 41 P. & C.R. 119, concerned a different situation. Richards LJ agreed with Arden LJ’s reasoning on this issue.

1. Court of Appeal (Civil Division) — [2018] EWCA Civ 555: allowed the appeal and held that the right of way had not been abandoned and would revive on reunification.
2. Tunbridge Wells County Court — before HHJ Simpkiss, case no. 3TN00252: held that the right of way benefiting the Strip had been abandoned or released by implication and would not revive on reunification.