Right of way: Assumption is the mother of all errors

Shared access-ways are a common feature of home ownership. This blog briefly considers if there is ever a point at which an unused access-way or pathway can be treated as no longer subject to a right of way, and the recent case of Pezaro -v- Bourne.

In this case, Mr and Mrs Pezaro owned two adjoining properties: Numbers 149 and 151 New Street. The properties were subject to a right of way in favour of the neighbouring property (Number 147) to use a pathway which ran behind Numbers 149 and 151 to reach New Street.

The owner of Number 147, Mr Aryes, had owned his property for 11 years and had never used the right of way, in fact it had been blocked by the erection of a fence, which Mr Aryes had not objected to, as he kept dogs and the fence helped to keep them in his garden.

Mr and Mrs Pezaro saw an opportunity to build a new property on land adjoining Number 151, but this would involve building a new dwelling over the right of way. The neighbours appear to have had a good relationship: they had previously jointly sold off some land in their back gardens for development, and so when Mr and Mrs Pezaro approached Mr Aryes to ask if he would agree to release the right of way so that they could build the new dwelling, he agreed.

Mr and Mrs Pezaro decided to arrange the planning permission for the new dwelling first, and then obtain a formal release from Mr Aryes of the right of way.

Unfortunately for them, whilst they were arranging the planning permission, Mr Aryes, sold his property to a property developer/speculator, Mr Bradshaw, who offered ‘cash for your house’ quick purchases. Mr Bradshaw then sold Number 147 to a Mr and Mrs Bourne who refused to release the right of way, after which Mr and Mrs Pezaro issued legal proceedings.

Mr and Mrs Pezaro’s legal team raised a number of legal arguments, and Mr Aryes gave evidence in the case in support of Mr and Mrs Pezaro, but ultimately they lost the case. This was despite the fact that the right of way had not been used for a number of years and had, in fact, been blocked off, and notwithstanding the fact that Mr Aryes had agreed to the right of way being terminated (because this agreement had not been formalised, it did not bind Mr Bourne), and so the right of way continued to exist.

It is particularly difficult to prove a right of way has been given up (known as ‘abandonment’). In one case, a right of way had not been used for 175 years but this still did not raise a presumption of abandonment.

It is easy, with hindsight, to see Mr and Mrs Pezaro’s mistake in assuming that circumstances would not change after initially approaching Mr Aryes for his consent, but it was a very costly assumption to make.

Luke Cain is a solicitor in the Property department at Barker Gotelee Solicitors in Suffolk.

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