A right of way – “use it or lose it”?

“Use it or lose it” – in fact with a right of way over your neighbour’s land, the opposite is true.  Case law shows mere failure to use a right does not on its own lead to its loss. This was illustrated by the Court of Appeal in Benn v Hardinge (1992). Here there was evidence that a right of way had not been used for 175 years. However, this was not enough to destroy the right.

The law uses the term “abandonment” of the right as the criterion for assessing whether the right no longer applies. For an abandonment to apply the landowner with the right must show by their actions that they intend to abandon the right. Mere failure to use is not by itself enough to destroy the right.

The Court of Appeal has recently looked at this issue in Dwyer v the Lord Mayor and Citizens of the City of Westminster (2014). The case concerned land off the Edgware Road London which had a right of way granted in 1922 over an adjoining passage way leading to that road. In the 1960’s the council which owned the benefited land redeveloped it for residential use. The development was designed in such a way that the occupiers of the benefited land had no need to use the passage way. 

In fact, shortly after completion of the development in the late 1960s to the present, Mr Henry Dwyer used the passage way to store equipment in connection with his market trader business. During this period of over 40 years the passageway was blocked off from the Edgware Road and from the benefited land. At the Edgware Road end there were locked gates; at the other end corrugated sheeting and two courses of bricks. 

In 2007 Mr. Dwyer applied to the Land Registry to be registered as owner of the passage way based on his long years of using it. He obtained a squatter’s title known as “possessory title”.

Westminster Council as the owner of the adjoining land with the benefit of the right of way, now wishes to redevelop it and to recommence use of the passage way. Any recommencement would be incompatible with Mr. Dwyer’s use of the way for storage for his business.

The Court of Appeal has decided the Council is entitled to recommence using the passage way. The court restated the existing law:

“On those findings, this was a simple case of mere non-use, incapable of supporting a conclusion that the right of way has been abandoned for all time. There had, therefore, been no abandonment at all.”

In other words, failure to use the right for over 40 years was not on its own sufficient to lead to the loss of the right.

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