I must start by thanking my colleague, Luke Weldon, for drawing attention to the case of Pezaro and another v Bourne  EWHC 1964 (Ch).
I was the solicitor with the conduct of this easement case for the successful Defendants. And I was the Defendants' advocate at the trial.
It's always encouraging when colleagues recognise the significance of one's cases, and the very clear message from this judgment is that if an owner of servient land believes that the dominant owner has indicated willingness to surrender an easement, that agreement should be:
- made clear in writing; and
- reflected in a change registered on the Registered Titles of both the dominant and the servient lands.
In this case both the dominant and servient owners admitted that the issue of the easement was simply never discussed. Each owners then sold much of their rear gardens to a developer, assuming that the easement would be extinguished (no credible explanation was offered for this assumption throughout the case).
The title was thus never changed, and later purchasers of the dominant land were simply not bound by any alleged (by the servient owners) common intention of the dominant and servient owners some years previously.
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Old owner of the "right of way" (shall we call him "A") never used it. It was overgrown and partly blocked. So "A" shook hands with the owner of the land over which the right of way passed (let's call him "B") to remove the right. "B" then tried to develop the land. Sadly for him, "A" sold to the unimaginatively titled "C" who then successfully claimed that his right of way remained valid.