4 common rights of way problems

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Rights of way disputes are more common than you might think and can have a significant impact on your business. Disputes specialist Tim Wolley at Bowcock & Pursaill Solicitors explains how rights of way are created and the common problems which lead to legal headaches.

Also known as an easement, a right of way is the right to access land (the dominant land) over another’s property (the servient land). If a right of way has been established, in most instances it is stated in your property deeds.

They can arise in several ways but are usually:

• Via a Deed of Grant agreed between the two parties which states the terms of the easement.
• Implied by law in certain circumstances.
• Where a piece of land has been used repeatedly and openly without the landowner’s permission for at least 20 years and there is evidence to support this. This is referred to as Prescription or a Prescriptive right of way.

Our top 4 common rights of way problems for landowners:

1. You think you have a right of way to your land as it has been that way for years, but someone has challenged it.

This problem is bourne out of an assumption there is a legal right of way but there isn’t. If the easement for a right of way has not been written into any property deed, it will be up to you to provide evidence that the land has or has not been used as a right of way for 20 years or more without force, secrecy or permission.

2. You are using a right of way for a farm track and now want to build on it.

Substantial interference with the enjoyment of an easement can give rise to legal action under private nuisance and providing an alternative right of way may not offset the interference. In such cases substantial interference is judged on whether the right can be practically and substantially exercised as conveniently as before the obstruction occurred. This will depend on the nature of the easement and the interference caused.

3. Your documents drawn up in 1939 say an area is for vehicular use, but does that still apply to the modern vehicle you are using?

The extent of an expressly granted easement such as a right of way depends on the interpretation of the deed granting the easement and on its context. The court will normally construe the grant in favour of the grantee or owner of the dominant land, but where there is a dispute, the starting point will be the context in which the provision was granted. If it has been used for vehicles, such as horse carts generally over time, it is likely to be interpreted to include their successor—i.e. motor vehicles. Evidence of use is therefore important, however, disputes of this nature can be extremely costly, and a mediated solution can be the best outcome for all concerned.

4. To what extent can you open up a right of way with access points?

A new gate can be opened in a different position on to an existing right of way if the right of way is a public right of way or where your deed of grant specifically provides for it. In addition, when interpreting the deed granting the easement usually a court may grant in favour of the owner of the dominant land, unless there are words which explicitly limit the access to any one point or number of points. However, it can depend on the reason for the change. Creating several openings along a right of way to facilitate development of the land may be deemed to be excessive use of the right of way.

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Tim Wolley has more than 20 years’ experience in handling and resolving a wide variety of disputes for both private and commercial clients, and Bowcock & Pursaill Solicitors are members of the Agricultural Law Association.

W: bowcockpursaill.co.uk

T: 01782 200509

E: tw@bowcockpursaill.co.uk