Rights of Way

A right of way is an easement that allows a landowner to pass across the land of another. This right can be created in several ways, including by:

  • Express agreement, the terms of which are usually set out in a deed. When a property is sold or transferred, any existing right of way will continue to exist;
  • Implied agreement, for example, if the right of way is necessary for the reasonable enjoyment of the property. This situation often arises if part of a property is sold, and the buyer needs to cross the land kept by the seller to access their part of the property;
  • Prescription, in certain circumstances, if the right of way has been used for more than 20 years.

If you have the benefit of a right of way, you can bring a claim if someone is substantially interfering with that right.

Do I have a claim if my right of way has been interfered with?

In order to bring a claim, the interference must be substantial. The interference will not be considered substantial if, despite the obstruction, the right of way can be used as conveniently and practically as before.

For example, the erection of several locked gates may not amount to interference if you are provided with a key. However, the interference is likely to be substantial if a landowner builds over someone’s right of way without providing an alternative route or compensation.

If successful, you may have recourse to a variety of remedies:

  • An injunction to prevent or remove the obstruction;
  • Damages to compensate you for your loss.

Additionally, any party can seek a declaration from the Court as to the enforceability, scope and meaning of a right of way. It is also possible to obtain a negative declaration that a proposed action, such as the development of land subject to a right of way, will not amount to an interference.

We can advise landowners seeking an injunction or damages and assist with settlement discussions. We can also advise landowners on whether a proposed development would amount to an interference with an existing right of way.

Can a right of way be removed or lost?

Easements can be varied or terminated in a variety of ways.

The parties involved can expressly agree to extinguish or vary the terms of the right of way. Any agreement will need to be documented in a deed and registered with HM Land Registry. This is an appropriate solution if, for example, a landowner intends to build over someone else’s right of way. The person with the benefit of the right of way is usually offered compensation to enter into a deed of release or variation.

A right of way can also come to an end by implied release in various circumstances, including:

  • If a person gives oral or written consent for something permanent to be done which consequently renders the right of way unusable;
  • If the right of way has not been used or enjoyed for a significant period of time, in which case the right is considered to be abandoned.

We can assist landowners with the benefit of a right of way or developers with formalising settlement negotiations in a deed of release or variation.

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