Neighbour and land disputes can often become complicated, especially when the owners or users of one property have the right to travel across another property belonging to another.

The term for this is an easement which includes any right that benefits a piece of land (known as the dominant land), enjoyed over another piece of land owned by someone else (the servient land). The right to pass over a path, road or way that belongs to someone else is therefore an easement.

Usually, easements are formalised by a deed and are then included on the official registered Title of the property. Once they have been formalised and agreed upon, they can become binding to any future owners of both the dominant and servient land. It is therefore important to be aware of any kinds of easements that affect your land, as there are only limited ways in which they can be removed.

Termination of easements

1. By Deed

Both the owners of the dominant and servient land can agree to remove the easement by deed.

If the easement is included on the registered titles of the properties/land, an application needs to be made to the Land Registry to remove the entries on the title registers.

2. In Equity

The principle of estoppel can be applied to agreements that purport to release an easement other than by way of a deed. As this deals with an interest in land, any agreement must have been in writing and satisfy the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.

If the owner of the dominant land has previously agreed not to enforce the easement and then allowed the servient landowner to disobey the easement genuinely believing that no attempt to enforce it will be made, the general principles of equity can be applied to estop a party reneging on an agreement to release the easement.

However, equity will not always assist. In Allen v Jones [2004] EWCH 1119 (QB) the parties agreed to release an easement, but the dominant land was sold before a deed was entered into. It was therefore held that the purchaser of the dominant land, who did not know about the agreement, was not bound in equity to release the easement.

3. Licence

This occurs when the dominant owner gives written or oral consent for something to be done on the servient land which results in the unavoidable consequence of the consent being that the easement can no longer be enjoyed. (Armstrong v Shepherd & Short Ltd [1959] 2 QB 384)

4. Abandonment

An easement can be extinguished by abandonment and is usually claimed where the easement has not been used or enjoyed for a significant length of time.

However, it must also be shown that the owner of the dominant land had a fixed intention never, at any time in the future, to assert the right to the easement or to attempt to transmit it to someone else (Tehidy Minerals Ltd v Norman [1971] 2 QB 528).

In general the Courts are reluctant to find that an easement has been abandoned. This is because property owners do not normally want to divest themselves of property rights even if they have no need for those rights.

Non-use must be looked at in the context of all the circumstances and if non-use may be explained by some other factor, including that the easement was simply not needed, then there will not be an inference of abandonment.

In fact, in Benn v Harding (1992) 66 P&CR 246 the non-use of a right of way lasted for 175 years, but this did not raise any presumption of abandonment because an alternative means of access had meant that there had been no occasion to use the right of way.

5. Alteration and excessive use

An easement can come to an end when the dominant land has been altered, and the alteration means that it can never benefit from the easement again.
If an easement has been granted or created with a limitation that it may only be enjoyed for a particular purpose, then if that purpose comes to an end, the easement will be extinguished.

However, it is difficult to show that a purpose has come to an end and will not be revived unless it is also demonstrated that there has been a fundamental change in the nature of the dominant land (Holmes v Goring (1824) 2 Bing 76 and National Guaranteed Manure Company Ltd v Donald (1859) 4 Hurl. & N. 8).

6. Unity of Ownership

An easement will be terminated if the same person/entity has ownership and possession of the freehold estate of both the dominant and servient land (Richardson v Graham [1908] 1 KB 39). This is sometimes referred to as the “unity of seisin” rule.

7. Expiry

As a general rule, an easement granted for a term of years will be extinguished when the term ends. Easements for a term of years often benefit or burden leases and it is necessary to consider what happens to such easements when the lease itself ceases to exist.

It is always worth checking your land registry title documents, and the rights associated with any property when you purchase it. It is also worth checking that any rights that have been granted to your property have not been altered or terminated accidentally.  You are advised to seek legal advice in all such cases.

Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation.  For more details of our services please email justice@griffin.law or call 01732 52 59 23.