There's always a way

If you have a right of way over neighbouring land and you stop using it for a long period of time, perhaps several years or more, will you eventually be regarded as having abandoned your right of way?

The answer is no. Non-use, even for many years, will not be treated as abandonment.

For a right of way to be treated as abandoned, the person with that right must show “a fixed intention” that they are willing for the right to be given up. Simply failing to use the right of way is not enough.

In the case of Dwyer v Westminster City Council, a residential development site was purchased by Westminster City Council in the 1960s. The site had the benefit of a right of way along a passageway on neighbouring land. The passageway was not used by the Council. In the end, the owner of the passageway blocked off both ends and installed a locked gate and a door creating an enclosed storage area, with no access from either end. This situation continued for 40 years. The Council made no attempt to use the passageway.

In 2010, the Council decided to redevelop its site and was keen to start making use of the right of way so that access could be gained to and from the main road. It therefore asked Mr Dwyer to reinstate the passageway. Mr Dwyer refused to do so and claimed that the Council had abandoned its right of way.

The Court of Appeal confirmed that there had been no abandonment of the right of way. This was a straightforward case of a long period of non-use of the passageway, but that non-use alone was not capable of supporting a conclusion that the right of way had been abandoned.

The Dwyer case confirmed that the courts are reluctant to infer an intention to abandon a right of way. The principle here is that property owners should not be at risk of losing property rights simply because they have no present need to use them. The courts’ approach is that property rights are generally only given up where an owner is paid to do so.

For any advice in relation to issues raised in this article, please contact Andrew Turner on 01242 586 841 or aet@hughes-paddison.co.uk.

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