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What is a right of way?

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A right of way (also known as an “easement over land”), gives a person (or people) the right to use a part of land that is owned by someone else, in a specific way, or for a particular purpose, despite the fact that they don’t own it.

Without a right of way, or consent, use of someone else’s land would normally amount to trespassing.  However, a right of way is not a personal right, the right is associated with the land itself.

Key features of rights of way

A right of way is found where there are two adjoining properties owned by different people.  One of the properties will have the benefit of the right of way, whilst the other property will have the burden of it. The right of way is commonly recorded by deed and in circumstances where the land is registered will be documented on the Title Register of the properties that are subject to them.

Private rights of way

A right of way can exist over a private path, passage, or access way.

Public rights of way

A right of way may be found over land that the public can exercise, which will allow them to pass along over common land, roads, footpath, bridle path or restricted byway.

Are there different types of rights?

There are four key kinds of rights over an adjoining parcel of land including:

  • Rights of way
  • Rights of light and air – there is no automatic right as such
  • Rights of support
  • Rights relating to artificial waterways

How are rights of way acquired?

  • Express rights of way – granted by deed, this commonly occurs where land is sold in part.  A right of way may be granted in the Title Register to enable a right to access or use that part of land that has been sold, for example to allow access to the property that is retained, or to access drains that no longer form part of the property.
  • Implied right of way – these are not expressly created but are implied by law, and the intention of the parties and the use of the property are taken into consideration by the courts.
  • Necessity – these occur by the order of the Court and are often found where a property may become landlocked without the right of way and there would be no alternative access to the land.
  • Prior use – a right of way may exist in circumstances where it can be shown that both properties or land were, at some point, owned by the same individual or people, were subsequently separated, and that the use of the right of way that is needed had been in existence prior to the separation. It would be obvious by inspection that there is a right of way and that it is reasonable, necessary, and will benefit the adjoining property.
  • By Prescription
    • A right of way may be established under the common law
    • Under the Prescription Act 1832
    • Or by lost modern grant

In order to acquire a right of way by prescription, the right of way must have been used for at least 20 years, and use must have been continuous and uninterrupted. The use must be open, without force and without consent. The use of the right of way is by a freehold owner or on their behalf, and the claim must be a right that could have lawfully been granted by deed.

Disputes between landowners in respect of rights of way are common, and in some cases a landowner may obstruct the other’s usage of the right of way.  In such circumstances Talbots Law Dispute Resolution team can help. Please call our expert team on 0800 118 1500 for more information or advice.