Private rights of way are one of the most common easements you’ll come across as a property owner. This is when a right is given to a particular person or group to cross across another parties land in order access a property or piece of land.
Regardless of whether you’re simply looking for a property, or you’re already a homeowner, it’s important to have a basic knowledge of private right of way rules. However, Right of way law is often complicated.
If you’re unsure about the law surrounding right of way, look no further. This article will break down what a right of way is, as well as if it can be removed, and some important points that you’ll need to know should any easement disputes arise.
Creation of a Right of Way
A Right of way gives someone the right to travel across land or property that is owned by another person.
For example, if resident A needs to cross resident B’s garden to get to their home, then resident B may grant a right of way that allows resident A and any future owners or tenants of resident A’s home, to use their land.
If a right of way has been established, in most instances it is stated in the property deeds. It is most common that rights are granted or reserved when a larger parcel of land was originally split to form two or more parcels of land.
So, using the example above, resident A owns a large parcel of land containing a house and a large garden. He wants to sell the house and part of the garden (Part C) to resident B and to build another house for himself on the part he is to keep (Part D).
The only means of access to the main road to Part D would require him to pass over Part C which would be owned by Resident B following the sale. Therefore, as part of the sale, Resident A ‘reserves’ a pedestrian and vehicle right of way for himself and his successors over Part C and Resident A agrees to the grant of this right of way when buying. Resident A can then go on to build his house and a driveway and can gain access across Resident B’s land to his new home.
A right of way can also be established through long-term use, often referred to as Prescription or a Prescriptive right of way. The basis must be that the right has been used without secrecy, force or permission for a period of at least 20 years. Evidencing these claims can often be difficult where the owner of the Property has not been the owner for the same amount of time. Previous owners can be relied upon, but unless declarations were made at the time you bought from them, it would require tracking them down, sometimes years later. It is therefore important that your solicitors consider these issues when you purchase a property.
A right of way can also be established by necessity. This can only arise in very specific circumstances and usually where the splitting of land, such as the example referred to above, leads to a parcel of land being landlocked. It does not arise in every circumstance but only where the splitting of the land itself caused the issue.
Interference with a right of way
You can take action if you consider that your right of way is being interfered with or it may be that you don’t consider that your neighbour has a right of way and you are seeking to stop them coming onto your land and you may be faced with an action for interference.
For an interference to be actionable, it must be substantial, which will depend on specific circumstances of your case. Minor infringements upon the right of way that doesn’t physically affect its use, usually cannot be legally pursued.
If you are considering taking action or defending a claim, it is important to seek advice as to whether the interference would be considered substantial. Our property dispute experts have considerable experience in these types of claim and will be able to advise you right from the start whether your claim or defence stands a good prospect of success.
Can a right of way be revoked or removed?
Removing a right of way is a complicated matter, as it depends on a number of factors. It is very difficult for a right of way to be removed, without the consent of those benefiting from it.
If you wish to pursue a claim for a right of way to be revoked due to lack of use, then this can be very difficult. You may be able to do so if you could demonstrate that the purpose for the right of way no longer exists. You will also need to demonstrate that those benefiting from the right of way has agreed that they no longer have use for the right of way and agree to release the right. This would involve entering into a Deed of Release, to formally remove the right.
If your neighbour tries to start using a right of way you considered abandoned, or if you wish to use a right of way that has not been used for many years, it may be the case that you or they are entitled to do so. However, we would always suggest that you seek legal advice before taking any action that would likely lead to a dispute between you and your neighbours.
If the easement for a right of way has not been written into any property deed, it will be up to you to provide evidence that the land has or has not been used as a right of way for 20 years or more without force, secrecy or permission. Once a right is established in the property deed, it keeps the same status as an expressed right of way, whether the right is still being used at the time the action starts or not.
Right of way dispute solicitors
If a right of way dispute has arisen, you’ll need the assistance of an expert team of right of way dispute solicitors, to get your problem solved as efficiently as possible or to give you the best chance of success with any claim. Our experienced dispute resolution team can help you do just that.