Rights of way are a common cause of misunderstanding and disputes. Whether it's a path across a field, access across a yard or a farm track. This article looks at the essentials: what rights of way are, how they work, and why they matter.
What is a right of way?
A right of way is a type of easement i.e. a legal right to use land owned by another party for a specific purpose.In the context of a right of way, that specific purpose is to pass over land owned by another party. A common example is the right to use a driveway crossing someone else's land.
How are rights of ways created?
In general terms, there are 3 ways which an easement can be created:
1.Expressly - in a deed, which is signed by all parties and grants the right and sets out the extent of the right. Where land is registered, an easement created by deed must be registered at the Land Registry on the title register for the property that is subject to the right of wayland (i.e. the burdened land) and the property that gets the benefit of the use of the right of way (i.e. thebenefitting land);
2. Impliedly - if a property is landlocked (i.e. has no other means of access), a right of way can be implied based on necessity for the reasonable use of the property. An example may be where, following a sale of part there is no other way for the remaining property owner to reach a public highway; or
3. By long user - where land belonging to another party is used without force, secrecy and without permission fora continuous period of 20 years, a right of way can be acquired under a doctrine known as prescription.
What type of vehicles can use a right of way?
The basis and extent of the right will depend on how it was established and whether any terms have been agreed and recorded.
Any prescriptive rights acquired will be limited to the scope of the long user and so historic use of a track for agricultural purposes would not, for example, provide aright to use it to access a future residential development.
Who is responsible for repairing and maintain a right of way?
If the right of way is expressly granted, the question of who is responsible for maintenance will often have been considered and documented as part of the right being granted.
Where that hasn't happened, the general position is that a landowner is under no obligation to maintain or repair a right of way. The same applies to the user of a right of way where there is no express agreement on maintenance.
Disputes can typically occur where a right of way requires maintenance and the parties are unable to agree who should pay for any work. This issue often crops up in the context of one party developing land that is accessed via a right of way, with the other party suggesting that their construction traffic has triggered the maintenance work being required.
A public right of way which has been adopted by the local authority is maintainable at public expense and thelocal authority should be contacted regarding disrepair.Where there is a stile or gate on a public right of way, itis the landowner's responsibility to maintain and ensure that it is safe and reasonably easy to use.
What happens when there is interference with a right of way?
Interference with a right of way can constitute a private nuisance if the interference is substantial. The courts will look at whether insisting on being able to use the whole of the way for the purposes for which it was granted is reasonable.
It is worth remembering that the local authority can override easements and other rights in land that has been appropriated for planning purposes subject to payment of compensation.
Can I take action for excessive use of a right of way?
Whether a landowner can take action against the user of a right of way for excessive use is complex. The courts will look at whether the use that is being made of the way is of a type, purpose and quantity that was envisaged and permitted by the terms of the easementitself at the time that it was granted.
In addition to this, the use must be so intensive that there is a significant increase in the burden on the servient land.
If you would like to discuss a right of way or its potential implications, please do not hesitate to get in touch.
