Right of way disputes are extremely common. They usually occur when a person, or a business, purchases or leases a property or land only to discover that others can use part of the property/land as an access route. This can result in the new owner being unable to use the property as they wish.
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What is a right of way?
A right of way is the legal right to travel over someone else’s land to get from one point to another. For example, you may have the right to drive across your neighbour’s driveway to reach your parking spot or travel through an estate to get to your house.
What is an easement?
A right of way is a form of easement. An easement is legal term and is more general. It refers to a right enjoyed by a landowner over neighbouring land which makes it easier to use their property. Easements only apply to private land. Public footpaths, and bridlepaths etc are public rights of way which can be used by anyone.
There are four main categories of easements (or rights), over an adjoining parcel of land:
· rights of way,
· rights of light and air,
· rights of support, and
· rights relating to artificial waterways.
For an easement to exist, the following must be true:
· There exists dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised) and these are linked.
· The easement benefits the dominant land, rather than merely giving the owner of the land a permanent advantage.
· The dominant and servient properties are owned by different people.
· The right is capable of creating the subject matter of a grant (easements must be granted either expressly, impliedly, or by prescription – see below), a neighbour cannot suddenly claim, without proof, that an easement exists and start trespassing on your property.
Who has the right to use an easement?
Anyone is free to roam on a public right of way. However, easements on private land can only be used by people who are using it for its intended purpose.
Disputes often arise when circumstances or the land changes and the right of way starts being used for purposes outside its original scope. For example, say, at the time the easement was granted, the right of way was for pedestrian access only. Disagreements can swiftly develop if the dominant owner starts driving their four-wheel-drive up a lane only wide enough for people on foot.
What’s the difference between an easement and a right of way?
A right of way is narrower in scope than an easement. Easements allow the owner of the dominant land to use the servient land in some way as long as it does not involve removing the natural produce of the servient land or of the soil itself, e.g. laying water pipes. If there is a right of way granted over your land, it is restricted in nature to allowing the adjacent property owner to get from Point A to Point B.
Is there a difference between a right of access and a right of way?
Yes – a right of way grants the right to pass over the servient property to reach a certain destination. If someone is granted a right of access it means they can access a specific part of your property, for example for maintenance purposes but they do not have the right to cross your land without your permission.
How are rights of way created?
There are several ways rights of way are created:
- Express – the right of way is granted by a deed that is registered on the title. Often this occurs when a piece of land is transferred to a purchaser and the seller grants the new owner an easement over any land they retain. Express easements can also be created by legislation or by a Will. The latter can occur when the Testator leaves dominant and servient land to different people.
- Implied grant – if the owner of the servient land sells part of it, an easement may be implied. An implied lease stems from the principle of non-derogation from grant. This means that if a person gives something (such as a grant of right of way over their land) they cannot take away the means of enjoying it. An implied grant of an easement can arise out of:
a) necessity – the new owner of the land cannot access it unless a right of way is granted over the seller’s retained land.
b) common intention – this occurs when the easement is required to ensure the land that has been sold or retained can be used for its intended purpose. Both parties must be able to prove that the use of the servient land is that which is identified in the easement.
c) The rule in Wheeldon v Burrows – this rule states that if a portion of land that has not been previously divided in terms of occupation is sold: all easements which are continuous and apparent, necessary for the reasonable enjoyment of the transferred land, and in actual use, will pass with that (now dominant) land.
Section 62 of the Law of Property Act (LPA) 1925 – a word-saving legislative provision that provides:
“A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all … ways…easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land…”
Section 62 saves Conveyancers from having to list every individual right benefitting a piece of transferred land.
- Prescription – if the right of way has been used openly for 20 years or more without interruption a prescriptive easement may be in existence. If you are buying a property with a prescriptive right of way, you should get the current owner to provide a Statutory Declaration stating the right of way exists and setting out when, how, and how often it has been used. This should enable you to register the easement at the Land Registry.
What are some examples of common right of way disputes?
The most common right of way disputes involve:
- Existence of a right of way
If the easement is not registered with the Land Registry a dispute can quickly develop over the existence or extent of an implied or prescriptive right of way.
- Excessive use
It is well established that the use of an easement must not exceed what it was granted for. Generally, the use of an easement can be judged in three separate but overlapping ways:
a) The nature of the use.
b) The purpose of the use.
c) The amount of the use.
Disputes often develop when the servient landowner accepts that an easement exists but objects to how it is now being used. Often this is because the use of the dominant land has changed over time.
- Failure to maintain
There is no legal obligation for the servient or dominant landowner to maintain a right of way. Given that, over time, an unmaintained right of way is likely to cause disputes, in most cases, a registered easement will contain a covenant in favour of the owner of the servient land requiring the dominant landowner to contribute to the maintenance and repair of the right of way. However, disputes can still arise regarding maintenance/repair costs and failure to contribute.
Disputes are often caused by the landowner blocking access to the right of way. This can be achieved by simply locking a gate. In these types of cases, there is often also a dispute regarding the existence or extent of the right of way.
What is a shared driveway?
As land values continue to rise, people often sell off parts of their gardens to developers to build new houses. As a result, there has been an increase in shared driveways, sometimes by up to three residents.
There are two types of shared driveways:
a) a driveway owned equally by all users, and
b) a private access road owned by one person with an easement allowing anyone who needs access to use it.
The most common disputes concerning shared driveways are around the maintenance of the shared space and the right to use it. The best way to avoid such neighbour disputes is to have your Conveyancing Lawyer draft a contract setting out each owners’ rights and responsibilities.
Can a right of way be removed?
The Highways Act 1980 ( and, in situations where development is affected, the Town & Country Planning Act 1990) provide routes for a public right of way to be diverted or extinguished. However, you are likely to face objections from the local community. So it is best to work with an experienced Right of Way Lawyer when making an application.
It is difficult to extinguish a right of way easement on private land without the consent of those benefiting from it. If you can show that the reason for the right of way no longer exists, it may be removed from the Land Registry. You would need to provide written statements from the beneficiaries of the right of way stating that they no longer require it and submit a Deed of Release to the Land Registry.
The challenge of removing a prescription or implied right of way is considerable. However, our experienced Conveyancing Lawyers can help.
What is a “ransom strip”?
A rather sinister-sounding ‘ransom strip’ refers to a small parcel of land retained by the owner of a property being sold (usually for development). It is often shown on the Land Registry Index Map as a thin strip running along the boundary of a larger plot in between the for sale land and a private highway or two parcels of privately owned land.
If planning permission is granted for the development of the land next to the ransom strip, the developer will need to buy that land to get access to at development. The owner of the ransom strip can sell it for a significant profit thus holding the developer to ‘ransom’.
As a result, “ransom strips” can often be very valuable
What is a Right of Way Search at the Land Registry?
A Right of Way Search is provided by the Land Registry and sets out all public and private rights of way affecting a property. Your Lawyer can run a Rights of Way Search for you and will collate copies of the relevant Land Registry documents for the adjoining properties over which a private right of way exists. The Land Registry also provides environmental searches detailing the public rights of way and common land affecting the property in question.
Do I need a lawyer to resolve my right of way dispute?
The best way to resolve a right of way property dispute is to talk to your neighbour. However, before you do this it is helpful to know your legal rights. A Property Dispute Lawyer can examine the title of your property and check if an easement is registered. Alternatively, they can advise whether an implied or prescriptive right of way easement may exist.
If talking to your neighbour doesn’t work, your Lawyer may suggest trying to resolve the dispute through negotiation and/or mediation. These options are voluntary, but they are cheaper and less stressful than litigation. And if you do go to court, the judge will normally expect that you have attempted to use these means to settle the problem – and there may be court cost implications if you haven’t.
Click here to read more about mediation and alternative dispute resolution
As a last resort, you can take your neighbour to Court. A Judge will establish whether or not an easement exists and can grant a right of way injunction. An injunction is a Court Order requiring one or both parties to act, or stop acting, in a certain way, for example, trespassing over your land (if no right of way is found to exist) or remove any obstructions affecting an established right of way.