Right of Way (easement) disputes
A right of way is a legal right to travel over land belonging to someone else in order to get from a defined point to a defined point, typically from a point on the public highway to some other point, over a defined route. The right may be a right of way on foot only or it might be a right on foot or with vehicles.
A Right of Way is an Easement
An easement is a right which a landowner in England or Wales has over neighbouring land which makes it easier to use their own land - hence easement. For example, if land does not adjoin the public highway but is separated from it by land owned by another person, a right of way over that land makes use of the land-locked land "easier".
Such rights of way are a common easement. Another example of an easement is a right to lay pipes under a neighbour's land to discharge waste water by means of a soakaway.
Strictly speaking we should be talking about private rights of way because there is another kind of right of way - a public right of way - which is not an easement. Public rights of way can be used by anyone, wherever they happen to live: it may be that a public right of way is particularly convenient for those living nearby but because use is not restricted to specific neighbouring landowners it does not count as an easement. This article is about private rights of way
Rights of way are generally negative in character. If there is a right of way over your land you must not block or otherwise obstruct it but generally you are not obliged to take positive steps to keep the surface in good repair. The neighbour who has the right of way can repair the surface but does not have to. This is in line with the conception that a positive obligation to do something is not compatible with ownership of freehold (as opposed to leasehold) land, so that whilst a positive covenant can be enforced between the original contracting parties, it is only negative covenants which can be enforced against subsequent owners.
Covenants to contribute to the cost of maintenance
Because an easement of a right of way does not automatically make either landowner liable to repair, but both parties have an interest in the surface being maintained, it is usual, when granting a right of way, to include a covenant in favour of the landowner over whose land the right of way runs, requiring the landowner exercising the right of way to contribute a percentage of the costs of maintenance. On the face of it this is a positive covenant unenforceable against subsequent owners but the courts have generally enforced such covenants in a negative way by holding that, whilst the party who has the right of way is free to pay or not to pay the contribution to maintenance, if they elect not to pay then they lose the right of way.
Limitations on Rights of Way
For each right of way there will be an express or at least implied limitation on the extent of the right which will generally be limited to a certain width along a certain route and may, for example, be a right of way on foot only so that vehicles are not permitted.
A right of way is generally limited to the land for whose benefit it is granted. A householder who has a right of way to their house from the public road over land owned by a neighbour, cannot generally buy a large plot of further land behind and expect to be able to use the existing right of way to gain access through their original land to a large area of land behind (though use of a small area of land which is purely "ancillary" may be possible depending on the wording of the document granting the right of way).
How are Rights of Way Created?
The surest way to create an easement is by formal deed. This can be a deed executed by both landowners with the sole purpose of creating the right of way but, more often, the creation of an right of way is just one part of a deed transferring ownership of a piece of land. For example the owner of a large piece of land may sell part of it, at the same time granting to the buyer a right of way over the land the seller is retaining.
Granting a right of way explicitly is to be preferred because the exact extent of the easement can be set out. However in certain circumstances an easement will be implied if not explicitly stated. For example if the owner of land containing two houses sells one house, and there is a made up drive from the public road to the house which is sold which passes over the retained land, the grant of a right of way will be implied.
If a landowner (or successive owners of a piece of land) has acted, for at least 20 years, as if they had a right of way then it is presumed that a right of way exists even if no deed granting (explicitly or implicitly) the right of way can be found. This is known as "prescription" and is based on the idea of a theoretical old lost deed. Acting "as if" you have a right of way means using the way with some regularity without asking for permission from the landowner. If you ask for permission every time you use the way then that suggests you are not using it as if you had the "right" to: you are only using it by permission. You might have been told that you can use it whenever you like but if the understanding is that that is only a temporary permission which could be withdrawn at any time then again that means you are not using it "as if" you had a right to do so, so your period of permissive usage cannot count as part of the continuous period of 20 years required to claim prescription.
A grant of a right of way in a formal deed could of course be described as a "permanent permission" but that is not what lawyers mean by "permission". The English word "permission" is used by lawyers as the equivalent of "precario" in Roman Law from which we derive the English word "precarious" and implies a temporary permission.
If there is no grant (explicit or implicit) of a right of way by formal deed then any permission given, even in writing, will generally speaking be treated by the law as "precario" even if it does not say it is temporary, because generally permanent rights of way can only be created by deed so any permission not given by deed must be temporary. But some decisions of the higher courts have suggested that there are some unusual circumstances in which a verbal permission intended to be permanent does not prevent prescription. For example if a landowner builds a garage on their land in a certain position because the neighbouring landowner has told them that they can drive to and from that garage over a route part of which passes over the neighbouring landowner's land, then the neighbouring landowner may be "estopped" from revoking their permission after the first landowner has expended money on building that garage if revocation would be "unconscionable". Of course exactly whether revocation would be unconscionable depends on the detailed circumstances. Would it be possible for the route to be modified so that it does not pass over the neighbour's land without repositioning the garage? Had the garage-building landowner already decided to build where he did before the neighbouring landowner offered use of their land so that the garage-building landowner in making that decision was not relying on being able to use part of the neighbour's land for access? All of the circumstances would be taken into account but if the neighbouring landowner is held to be estopped from revoking the permission then that permission would not prevent a prescriptive right of way being acquired by 20 years continuous usage.
Rights of Way over Registered Land
The system of land registration is designed to avoid, or at least reduce the likelihood of, a purchaser being bound by interests burdening the land which the purchaser is unaware of. To help to achieve this objective, some interests which affect registered land have to be registered and, if not registered, are lost when the registered land is sold.
In general private rights of way granted expressly by deed have to be registered if the burdened land, at the time of the grant, is registered, and generally will be lost when the land is sold if not registered by then.
Rights of way created before the burdened land was first registered should, if known about, be added to the register upon first registration but if for some reason that does not happen, for example in the case of rights of way created by implication or by prescription, the right will not generally be lost when the land is sold if :-
the buyer knows about it, or
It would have been obvious on a reasonably careful inspection of the land over which the right of way is exercisable, or
the person entitled to the right of way proves that it has been exercised in the period of one year leading up to the date of sale.
However some older rights of way, created before 2006, can be binding even if none of the above three conditions apply - i.e. even if the purchaser did not know about the right of way and had no reason to suspect its existence.
The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice
This page was lasted updated in September 2023. Disclaimer