When is a fence not an obstruction?
If a property has the benefit of a right of way it has been established law for a long time that just stopping using the right of way (abandonment) doesn’t invalidate the right of way or cause it to fall away. A 1992 court case (Benn v Hardinge) ruled that abandonment of a right of way for 175 years didn’t extinguish the right. This rule was tested in the Court of Appeal in the case of Annetts v Adeleye.
In this case, a property had the benefit of a right of way over an access strip from 1962. The property sold some land off in 1988. It was agreed that the benefit of the right of way was transferred to the owners of the plot of land. However, there was an obligation that they should install a fence along the boundary of the plot between the plot and the access drive. The argument was made that by agreeing to fence off the plot so that the accessway couldn’t be used meant the right was abandoned.
The court held that whilst there had been a ‘discontinuance’ of the use of the right of way, it hadn’t been abandoned and could be used again in the future. The obligation to fence didn’t say that the plot owner couldn’t install a gate in the fence if they wanted to use the access.
If you are buying, or already own, a property that may be affected by a right of way, or had been in the past, then you need to carefully look into the terms and route of the right of way. The fact that it isn’t being used now, doesn’t mean it will not be in the future.