Legal Definitions - non utendo

Non utendo is a legal principle, primarily rooted in Roman and Scots law, which translates from Latin to "by nonuse."

This principle describes the loss of a legal right or privilege due to the holder's failure to exercise or use that right over a significant period or under specific circumstances. In essence, if a right is granted but consistently neglected, it may eventually cease to exist.

• Example 1: Right of Way

  Imagine a situation where a property owner, Mr. Henderson, has a legal easement allowing him to drive across a specific portion of his neighbor's land, Ms. Davies, to reach his garage. This right was established decades ago when Mr. Henderson's property had no other direct access. However, ten years ago, Mr. Henderson built a new driveway on his own land that connects directly to a public street, making the easement across Ms. Davies' property unnecessary. Since then, he has not used the old right of way even once.

  In this scenario, Ms. Davies might argue that Mr. Henderson has lost his right to use the easement through non utendo. Because he has continuously failed to exercise his right of way for a prolonged period, the legal burden on her property could be extinguished, freeing her land from that restriction.

• Example 2: Historical Fishing Rights

  Consider a small village situated along a river where, for centuries, the villagers held a customary right to fish in a particular stretch of the river, a right passed down through generations. Due to changes in local industry and a decline in fish populations, the villagers collectively stopped exercising this fishing right about fifty years ago, with no one from the village having fished in that specific area since.

  If a new landowner acquires the riverbank property and wishes to develop it, they might assert that the villagers' historical fishing right has been lost through non utendo. The prolonged and complete nonuse of this customary right by the community could lead to its legal termination, as the right was not actively maintained or exercised.