04 August, 2010
The recent case of Lester & Hardy v Woodgate & Woodgate  EWCA Civ 919 highlights the importance of making sure that a right over someone else's land, such as a right of way, known as an 'easement' does not lapse through disuse.
The facts of the case involved neighbours. One neighbour had been granted an easement in 1980 which permitted access to a pathway that ran along a strip of land owned by the other neighbour.
By 1999 the strip of land was being used for car parking, the landowner had removed most of the pathway and resurfaced the area. The neighbour who had the benefit of the easement did not object to the works being carried out.
When both properties came to be sold, the new owners of the land with the benefit of the easement sought an injunction to have their access to the pathway reinstated and to prevent the car parking. The action failed as the previous owners had not done anything to prevent the owner of the land from breaching the terms of the easement over a long period of time. It was held that the easement, despite being contained in the deeds, was no longer enforceable.
The fact that the neighbour had stood by and allowed the landowner to carry out works and prevent the use of the easement meant that the right was considered to have lapsed. The court decided that it would be unfair (under a legal principle called 'estoppel') for a later owner to rely on a right which their predecessors had failed to enforce.
It is important to know what rights are attached to land and to ensure that these are enforced otherwise, following this ruling, rights may be lost.
For further information please contact Hannah Moody at our Preston Office on Tel: 01772 220022 or contact Hannah Moody by email.