Rights of Way over Neighbour's Land

Rights of Way over Neighbour's Land

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Article Summary

A right of way over your neighbour's property is an easement. If the right of way benefits your property, i.e. it passes over your neighbour's property, it will be referred to in your Title Register, in the A section, and in your neighbour's Title Register, in the C section. Rights of Way can be limited to a right to travel by foot only, or can include various means of transport. Although the right of way is referred to in the Title Registers it was initially created by Deed and that Deed usually contains more information. This is a Conveyancing Deed and will usually be available for purchase. All rights of way documents are included in our Rights of Way Search. This article includes examples of rights of way extracts taken from Title Registers and Deeds.

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Easements

Private rights of way are easements, which are rights to use your neighbour's property in a specified way. Other types of easements relate to rights of light and air, rights of access, and rights of support.

Rights of Way Search

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Private Rights of Way

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.

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

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Express Easement

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 brown 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 blue 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 his own property. Conversely, the right of way may be granted over his retained land so that the purchaser can reach his new property.

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Implied Easement

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.

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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.

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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.

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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.

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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.

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Title Register extracts re Express Easements

Sample extract of a Title Register referring to a Right of Way benefitting the land

Sample extract of Title Register of Adjoining Property referring to the same right of way as burdening the property

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Title Plan extracts re Express Rights of Way Easements

Extract from a Title Plan showing a simple Right of Way Easement allowing passage to and from a property through an alleyway

Sample extract from a Title Plan showing more complex Right of Way Easements, tinted Pink and Blue

The description given in the Title Register for the above right of way tinted pink is:

Further rights of way are found in the A section of the Title Register relating to the land tinted (dark) blue. The C section of the Title Register refers to rights of way that burden the land which is tinted (light) blue.

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Easements not created Expressly

Easements created in any way other than expressly will not be referred to in the Title Register or Title Plan, and will instead be established with the use of intrinsic evidence.