Understanding the complexities involved in rights of way can be challenging, yet critically important, especially when considering property transactions and neighbourly disputes. This guide will provide you with a detailed legal overview of the concept of right of way, shedding light on essential legal principles, types of rights of way, potential disputes, and frequently asked questions.
What exactly is a right of way?
In legal terms, a right of way refers to the legal right to pass across another person's land or property. This entitlement does not give unlimited ownership or control over the land in question; rather, it grants limited access for specific purposes, such as gaining entry to a nearby public road, utility maintenance, or allowing pedestrians and vehicles access through particular pathways.
Common types of rights of way in the UK
In England and Wales , rights of way generally fall into two categories: public rights of way and private rights of way.
Public rights of way
Public rights of way are routes that the public may lawfully use to pass and re-pass. They include:
- Footpaths – routes only accessible by pedestrians.
- Bridleways – paths open to pedestrians, horse riders and cyclists (unless restricted by local regulations).
- Restricted byways – these allow walkers, horse riders, cyclists, and certain non-mechanically propelled vehicles to use them.
- Byways open to all traffic (BOATs) – accessible to vehicles as well as walkers and horse riders.
These routes are recorded and maintained by local authorities and must be kept free from obstruction to allow public access.
Private rights of way
Private rights of way involve access through privately-owned land to benefit specific individuals or groups. Such rights are either explicitly documented within property deeds, or acquired through long-term, uninterrupted use (prescriptive rights).
These rights typically include:
- Easements explicitly stated in a property deed or conveyance document.
- Rights gained through prescription after a minimum of 20 years continuous, uninterrupted use.
- Rights of necessity, granted when it is essential for accessing a property being otherwise inaccessible.
How are rights of way created?
Rights of way can be established through several methods, including:
- Express grant – a formal, written agreement documented within property deeds.
- Prescription – where long-term, continuous, uninterrupted use over at least 20 years establishes a prescriptive right.
- Necessity – when a property has no other form of access and a right of way is essential for its use.
- Implied grant – created during the sale or subdivision of land, even without explicit mention, based on established usage patterns.
Key considerations when dealing with rights of way
If you currently own property or considering purchasing land that involves a right of way, you should carefully consider the following:
Check legal documentation thoroughly
Examine property title deeds, surveys, and conveyancing documents carefully to ensure you understand precisely the type and extent of any rights of way.
Maintenance responsibilities
Unless explicitly stated, the default position is that the person benefiting from a private right of way is responsible for maintaining the pathway to ensure it remains usable and safe. You may be obliged in your deeds to contribute to the cost.
Obstructing rights of way
Be aware it is unlawful to block or obstruct established rights of way. If obstructions occur, the affected party may pursue legal action, potentially leading to expensive disputes.
Resolving disputes over rights of way
Disputes commonly arise regarding rights of way, often involving disagreements or misinterpretations of documented conditions. Resolving these disagreements typically involves:
- Negotiation – parties should initially try to resolve disagreements amicably by discussion and mutual agreement.
- Mediation – a qualified mediator helps both parties reach a mutually agreeable solution without costly legal proceedings.
- Court proceedings – if alternative dispute resolution fails, parties may seek a court determination to resolve the dispute definitively.
Frequently asked questions about right of way
Can you remove or alter a right of way?
Removing or altering a right of way is possible but may require agreement amongst affected parties. If consensus can't be reached, legal intervention may be necessary. Alterations typically require clear evidence or justification showing the right of way is no longer necessary, practical or is unreasonable.
What happens if someone obstructs a right of way?
Obstructions of a right of way are unlawful. Such actions can result in legal proceedings, and courts often order immediate removal of the obstruction and may additionally award compensation or legal costs to the affected parties.
Can a right of way expire if not used?
Public rights of way typically remain indefinitely valid, irrespective of usage. By contrast, private rights of way could theoretically lapse if explicitly stated in deeds or, very rarely, through formal legal procedures demonstrating abandonment. However, simply not using a private right of way for an extended period (over more than a life time even) does not automatically extinguish it.
Does a new property owner inherit existing rights of way?
Yes, rights of way usually run with the land and not individual people. Consequently, new landowners automatically inherit existing rights of way recorded in property deeds or acquired by prescription. It is possible to grant a personal right of way but this is unusual.
Can I erect gates or fences on a right of way?
Typically, erection of gates or fences that obstruct or impede access along a right of way is permitted as long as the right of way can still be conveniently used. This is very fact sensitive and the same gate on a different right of way may be held to be an interference. If you care considering installing a gate or fence you should have reach an agreement with the user of the right of way or seek legal advice.
Seeking professional legal advice
Rights of way issues commonly have significant implications for property owners, land developers, and the general public. Given the potential complexity and significant legal implications, obtaining professional legal advice from experienced solicitors specialising in property law is highly recommended. Legal guidance can ensure you are well-informed about your rights and responsibilities and can help proactively avoid, manage or resolve disputes efficiently. Contact us today on 0161 696 6178 to speak to our specialist solicitors.
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