An easement is a right over someone else’s land, such as a right of way. Once granted, rights of easement are frequently forgotten about, but a recent case shows the importance of making sure that an easement does not lapse through disuse.
It involved neighbours, one of whom had been granted an easement in 1980 permitting access to a pathway that ran along a strip of land owned by the other. The easement replaced an earlier right of way which had been expressly granted.
By 1999, the strip of land was being used for car parking and the owner had removed most of the pathway and resurfaced the area. The other neighbour did not object to the works.
Later, both properties were sold and the new owners of the land which had the benefit of the easement sought an injunction to have their access reinstated and to prevent car parking.
The argument proved unsuccessful because the previous owner of the property had done nothing to prevent the owner of the land in question from breaching the terms of the easement over a long period of time. As a result, the easement, although contained in the deeds to the property, was no longer enforceable.
The case was won on the argument that the neighbour who had benefited from the easement had stood by and allowed the landowner to prevent them from exercising their right of easement. It would therefore be unfair (under a legal principle called ‘estoppel’) for a later owner to rely on a right which their predecessor in title had failed to enforce, because the landowner had been induced by that conduct to conclude that the right would not be enforced.
Where the facts support it, an easement, even one specifically granted, may be considered to have lapsed.