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 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 to 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 exact wording of the document granting the right of way).
How are Rights of Way Created?
The surest way to create an easement is by 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 retained land.
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 several landowners in succession) 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 explicit (or implied) grant can be found. This is known as "prescription".
Rights of Way over Registered Land
The Land Registration Act 2002 is designed to avoid, or at least reduce the likelihood of, a purchaser being bound by interests affecting the land which the purchaser is unaware of. Some interests which affect registered land have to be registered and, if not registered, are lost when the registered land is sold.
Private rights of way created expressly by deed since 2003 have had to be registered and generally will be lost when the land is sold if not registered.
Rights of way created before 2003 (or created after 2003 but by implication or prescription rather than expressly) can, and in some cases should, be registered, but even if such a right of way is not registered against the land it burdens it will not be lost when that 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.
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 April 2021. Disclaimer