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Rights of way over access to land

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Whether a right of way is held to be abandoned by erection of a fence.

The background

In Annetts v Adeleye [2018], a right of way to a strip of land was created by a Transfer completed in 1962. By way of a further Transfer in 1988, the purchaser agreed to erect and maintain a fence between the strip of land and the access way, in effect blocking off the access way from the strip. The respondent in this case contended that the purchaser had abandoned the right of way by agreeing to erect the fence.

The appellant argued that the right of way could not automatically be deemed to have been abandoned, particularly as the covenant to erect the fence did not exclude the possibility of including a gate. The Court considered a number of issues, including whether the right of way was abandoned by the 1988 Transfer and whether the abandonment took effect wholly or partially.

The decision

The Court of Appeal held that the right of way had not been abandoned, and allowed the appeal. Agreeing with the appellant, the Court concluded that the covenant to erect the fence did not prevent the appellant from including a gate in the structure, allowing the right of access to be exercised. Further, even if the covenant had prevented the inclusion of a gate, there was still insufficient intention demonstrated to extinguish the right of way. The issue as to whether the abandonment was whole or partial was therefore not considered.

In its decision, the Court stated that whether the right of way had been abandoned was a question of fact, to be decided by assessment of the circumstances of the case and whether there was a clear intention by the dominant owner to extinguish the right of way. With reference to Jones v Cleanthi [2006], even a large obstruction did not automatically abandon a right of way. Further, and pursuant to the fact that the covenant was contained in a prior Transfer, the Court of Appeal decided that the covenant was a contractual arrangement, and the appellant was not a party to the contract.

Advice and action for landlords

A key learning point from this case is, as so often arises, the need for clear and unambiguous drafting and for the intentions of the parties to be made clear in documentation. Where covenants are contained in previous Transfers, the Court will assess whether a party is bound by it given that the contractual arrangement was made between others.

When completing Transfers for development, and whether acting as the grantor of a right or the party benefiting from it, landlords are advised to be fully aware of rights of way, in particular access rights, and ensure that wherever possible access ways remain open and accessible. As demonstrated here, Courts will seek to maintain the right where there is no clear intention to abandon it.

The Court allowed the appeal, holding that the right of way had not been abandoned. The covenant did not prevent the appellant from including a gate in the fence, allowing the right of access to be exercised.

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