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propertylawyer, Solicitor
Category: Law
Satisfied Customers: 288
Experience:  Property Solicitor with expertise in commercial and residential property transactions.
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Had a fence up on the left hand side of the garden ,which

Customer Question

Had a fence up on the left hand side of the garden ,which goes across the tenfoot for 28years ,my neighbour chopped my fence down and put a pair of wooden gates up where my fence was,now saying they want access in their garden for parking how do we stand ,this access has never been opened up and there has always been a fence across the ten foot
Submitted: 1 year ago.
Category: Law
Expert:  propertylawyer replied 1 year ago.

Hi John

Thanks for your question.

It is possible for an easement to be abandoned where it has not been used for a significant length of time.

However, the fact that the easement has not been used for a very long time is not in itself sufficient to evidence abandonment. Cessation of use must be coupled with the necessary intention.

Non-use has to be looked at in the context of all circumstances and if Non-use can be explained by some factor, including that the easement was not needed, then there will be no inference of abandonment.

Caseload suggests that courts are reluctant to find 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 present need for the easement in question.

Of course each case turns on its facts.

What I am trying to say is that it is not that easy to say that non use results in abandonment. The courts may decide otherwise.

I hope that my reply is of benefit.

Do you have any queries in respect of my answer?

Please can I ask you torte/accept my reply so that I receive credit for helping you.

Kind regards