Private Rights of Way Disputes

Private Rights of Way Disputes

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Article Summary

A Private right of way is also known as an easement, although to satisfy easement law there must be two adjoining properties under different ownerships, and the easement must have been created by Deed. If the property is registered at the Land Registry the easement or right of way will be referred to in the A section of the Title Register of the person who has the benefit of the right (this is known as the dominant tenement) and in the C section of the Register for the person having the burden of the right (known as the servient tenement). This article discusses the various ways in which rights of way easements can arise in addition to an right of way that is created expressly. It also describes a Rights of Way Search, what documents are included within it, and how to obtain the search.

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What is a Right of Way

A right of way is the right of pass over property belonging to another person. A public right of way exists for the benefit of the public at large, whereas a private right of way exists for the benefit of an adjoining land owner only. Sometimes private and public rights of way may coexist, i.e. share the same path, but this is quite unusual.

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What is a Rights of Way Search

A Right of Way Search is a product of various Land Registry Title documents and of various Environmental Reports and Maps.

The search consists of the following documents:

• Title Register and Title Plan for the land having the benefit of the Right of Way
• Title Register and Title Plan for the land having the burden of the Right of Way
• Associated Documents and Deed Plans for each of the above properties
• Lease and Lease Plan for one of the properties, if applicable
• Neighbourhood Environment Report with Rights of Way Map
• CROW Map

Rights of Way Search

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Public Rights of Way

Public rights of way affect members of the public at large rather than merely adjoining land owners as is the case with private rights of way. Because many people can be involved in public rights of way problems the issues may be far wider than with private rights of way.

A public right of way is defined as the right of a member of the public to pass along a right of way at any time of his choosing. The right will be restricted accordingly to the type of right of way it is, e.g. a footpath is limited to its use by foot only.

Please refer to our "Public Rights of Way" article for more information.

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Private Rights of Way

Private rights of way are easements, which are rights to use your neighbour's property in a specified way. In this chapter I will be directing the information specifically to rights of way (other easements relate to rights of light and air, rights of access, and rights of support).

All private rights of way have three things in common:

1. There must be two adjoining properties. One has the benefit of the right of way and the other has the burden of it. The property having the benefit of the right of way is known as the dominant tenement, and the one having the burden is known as the servient tenement.

2. The two properties cannot have the same owner.

3. The right of way must have been created by a deed and where the land is registered it must be referred to in the Title Register.

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Types of Private Rights of Way

Rights of Way can be created in a number of different ways, notwithstanding the above, depending on the circumstances, as follows:

Express Right of Way

An express easement for a right of way is one which is created by deed (section 1 (2) Law of Property Act 1925). Where the land is registered, as is usually the case, the A section of the title register for the dominant tenement will refer to the right of way and may contain a note that a copy of the deed has been made. The A section deals with matters that benefit the property. The title plan will illustrate the right of way with a brown tint or hatching.

The C section of the title register for the servient tenement will also refer to the right of way. The C section contains matters that burden the property. The title plan will illustrate the right of way with a blue tint or hatching.

An express easement for a right of way is normally created by the vendor upon sale by him of part only of his property. It is created to allow him to continue to enjoy his remaining property by allowing him a right of way over the land sold so that he can reach it. Conversely, the right of way may be granted over his retained land so that the purchaser can reach his new property.

Implied Right of Way

An implied easement for a right of way is not created by deed; rather, it is implied to exist by law. The courts will look at the intention of the parties and as to how the property was intended to be used.

This may come about where a vendor sells part of his land, retaining an adjoining part for himself, but where he forgets to create an easement in his own favour to allow him to access his retained land. As there would be a legal presumption that the vendor would have had ample opportunity to grant himself an easement but did not do so, the easement will be more limited in scope than it would have been had he expressly granted it. For example, the right of way may be granted by the court to be by foot only, rather than to include access by vehicles.

Easement of Necessity

This type of right of way only exists once the court make an order for it to exist. It is required where a land owner cannot access his property without it, i.e. where the property is landlocked. The court will deduce the intention of the original parties and whether the balance of inconvenience would lie with the dominant or the servient tenement.

An easement of necessity will cease to exist once it is no longer needed, e.g. because an express easement is created.

Easement by Prior Use of the Right of Way

Where a party has a history of using a path the courts will assume that the right of way was originally intended but that the parties overlooked creating it. This can only be so if it can be shown that both properties were once in the same ownership, that they were divided and that the use for which the right of way is required existed before the properties were divided. It must also be shown that the right of way is patently obvious, i.e. easily seen and that it is reasonably necessary and will benefit the dominant tenement.

Prescriptive Right of Way

An easement by prescription is similar to a claim for adverse possession in so far as it relates to the use of the land without the owner's consent, openly, and over a continuous period of at least 20 years. A prescriptive right of way can be in favour of more than one person. A prescriptive right of way will never come into existence if the owner of the land takes action to stop its use before the 20 year period expires. If he does, then the 20 year period will have to begin again.

The prescriptive right of way claimed must be one that the law would normally allow, and not, for example, to allow an offence to be committed, such as fly tipping.

Right of Way created by Estoppel

The court will create an easement by estoppel where it is necessary to prevent an inequitable outcome because the vendor of the land misrepresented that he would grant a right of way but did not actually grant it. So long as the purchaser proceeded with the purchase in good faith, relying on the vendor's representation, then the court will usually grant the easement.