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Abandoned right of way? What property developers need to know

Jonathan Riding | Brighton

8th May 2018

If a right of way has been blocked up and there is a legal obligation to keep it that way, is the right abandoned?  The Court of Appeal’s recent decision in the case of Annetts v Adeleye involved just such an historic right of way.  It is a cautionary tale, particularly for property developers, who might find their development plans interrupted or even held hostage by neighbours re-asserting an historical right of way.

Is a blocked right of way an abandoned right of way?

There was a right of way over an access way to a strip of land in Sevenoaks.  Subsequently, there was a legal obligation (covenant) to erect a fence.  The fence physically blocked the right of way making it unusable.

The legal agreement to erect the fence was clear; it stated “to erect, and for ever after maintain, a fence.”   The requirement for there forever to be a fence, making the right of way unusable, might lead to a logical conclusion that the right of way had been abandoned.

But this is not what the Court found.

Not as simple

Considerable legal argument followed.  This included discussion about whether the covenant might have allowed a gate to be built in to the fence.  The words in the legal agreement did not mention a gate.  But it was argued it could be implied based on the surrounding circumstances.

There were two law lords hearing this case.  Whilst they ultimately arrived at the same decision, on this point they disagreed.  One said the covenant did ‘preclude a gate’.  The other that it did not.  They interpreted the surrounding facts differently.

But determining whether the right had been abandoned was not as simple as the question of the gate.  There was discussion about the permanence of the fence and comparisons with a hypothetical wall.  Also as to what future owners of the land might do (or could be legally required to do).   The landowner of the land subject to the right of way, was not a party to the agreement to erect a fence.  The boundaries had also moved which was relevant.

The Court’s decision

The Court found the right of way had not been abandoned or lost.  Abandonment was a far more complex issue than simply looking at whether a right of way had been blocked up and not used for a period of time.

Conclusion

Property developers should understand this is a complex issue.  A right of way that is not being used, and is blocked up, should not be assumed to have been abandoned.  Each case will be determined on its facts.   The risks are clear.  This case was issued in 2016 and was resolved in the Court of Appeal in 2018.  If you face a similar issue, early advice could help avoid substantial delay and legal costs.

If you need advice in relation to a historic right of way, it would be advisable to seek expert legal advice at an early stage.

We are here to help

We have a talented pool of lawyers who are well versed in every aspect of property litigation.  Call us on 01273 324 041 and we will be happy to help.

 

 


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