Easements lost by abandonment
Easements lost by abandonment

The following Property practice note provides comprehensive and up to date legal information covering:

  • Easements lost by abandonment
  • Strong evidence of intention is required
  • Suspension of use—is 20 years enough?
  • Resumption following unification
  • Partial abandonment
  • Abandonment where the original use has become impossible
  • Physical separation
  • Estoppel by acquiescence
  • Possible reform

In order to show that an easement has been abandoned, the servient owner must show that the dominant owner had a clear and fixed intention never to:

  1. exercise the right again himself, or

  2. attempt to pass the right to anyone else

Strong evidence of intention is required

The court will not readily find that a right has been abandoned. A right was held to continue where an easement was granted over 40 years previously for the use and enjoyment of three garages which had since been demolished and replaced by a two-storey car park. The ramps to the car park were located on the site of the original garages. When the claimant bought the garage land, it demolished the car park and built three new garages on the site of the old garages. When the claimant tried to exercise its right of way the owner of the servient land claimed that it had been lost by abandonment. The court ruled that even though the works of demolishing the garages and building the car park were substantial and the right of way had not been used in over 35 years, there was not enough evidence to show an intention to abandon the right of way for ever and never resume its use.

Abandonment was also rejected where a dominant land owner had not used a right of

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