Charlotte Lowe Dispels the Myths Surrounding Rights of Way

Rights of way exist when the owner of one piece of land is allowed to cross a piece of land owned by someone else.  These rights of way can allow someone to cross the land by foot, in a vehicle, on a horse or a combination of uses. They may also only allow access for a particular purpose, for example maintenance of a property. If a right of way was created a long time ago the document creating it may refer to access with horse and cart. This may sometimes be interpreted, by the courts, as allowing a right of way with vehicles.

There are three main ways to create a right of way:

(1) by an express agreement;

(2) by necessity (for example,when without the right of way there would be no other way to enter a property); or

(3) by, what is known as, prescription.

A right of way created by prescription is when someone has acted as if they had a right of way over a piece of land for a certain period of time. In order to acquire a registrable prescriptive right of way in this manner the right of way cannot have been used with the consent of the owner or by deceiving the owner or by the use of force. It has to be shown that the right of way has been used for in excess of 20 years. If the person using the right of way can satisfy both parts of this test then the right of way may be able to be registered at the Land Registry.

If you have a right of way then you are allowed to use it in the manner agreed (for example, on foot or with a vehicle etc.).  You may get in to difficulties if you only have a right to pass over land on foot and you begin to drive a vehicle over the land. This could be seen as excessive use.  You can also become an excessive user if you use the right of way in the manner allowed (e.g. on foot) but do so with excessive frequency.  What will constitute excessive frequency will depend upon the scope of the right of way and the facts in each individual case.  If you use a right of way excessively you may find your self subject to court proceedings by the land owner to limit your use.

Another point to consider is that land owners should not make it overly difficult for you to use your right of way, for example, by making you pass through a series of gates. If a land owner does make it difficult for you to use a right of way then you may have a claim against them for interference. However, this is again dependent upon the facts in each individual case. In some situations a single unlocked gate could amount to an interference with the right of way whereas in others multiple locked gates (with keys provided) would not amount to interference.

If someone is preventing you from using a right of way, is making it difficult to use a right of way in the way you are entitled to use it, or is seeking to narrow or move a right of way then you should seek legal advice immediately. One option may be to apply for an injunction requiring the land owner to allow you to use the right of way. However, in order to seek an injunction, action needs to be taken very swiftly. If you fail to make an application as soon as you discover the problem the court is less likely to award you an injunction. Alternatively, you could seek a declaration from the court that you are entitled to use the right of way.

Sometimes people do not use a right of way which they are entitled to use for a long period of time.  A question we are often asked in such a situation is whether that means right of way has been abandoned.  It is possible for a right of way to be abandoned and, if established, the land will be released from the right of way. However, it is hard to show that a right of way has been abandoned as the courts do not think that people should lose rights over property easily. It has to be shown that the person had the intention that neither they nor anyone who bought the land after them should be able to use the right of way. This is very difficult to establish in practice. As such, it is hard to lose a right of way even if it hasn’t been used in a long time.

However, it is still possible to remove a right of way over your land. The most common method to remove a right of way from your land is with a written agreement. Often the party with the right of way will be reluctant to give it up and you may have to negotiate a sum in order to get them to agree to give up the right of way.

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