Posted on 11th June 2018

A Right of Way is a Complicated Thing

Martin Williamson, Director and Head of Residential Property
Martin Williamson, Director and Head of Residential Property

A right of way over another person’s property and many other rights, such as a right to run a water pipe or to have access on to somebody’s property to maintain and repair part of your own property, is called, in legal terminology, an easement.

The law relating to easements and how they can be created or come into being and indeed whether they can be changed or fall into disuse is quite complex and usually depends very much on the circumstances of each case.

Unfortunately, a very high proportion of disputes relating to property are concerned with the use of rights or easements by one property owner over the property of another. It is important therefore for a property owner to understand what their rights are and what they might not be if disputes are to be avoided.

There are a number of ways in which easements can come into being. There are two principle ways however. Firstly, the easement can be created by a Deed by which one property owner grants to another or others a specific right or rights over their property. To be a true easement the right will need to be granted not just for the benefit of a certain person or persons but will need to be expressed to be for the benefit of that person’s property regardless of whether the owners of it then change. Written grants of an easement can be in a specific Deed of Grant or, as is commonly the case, forming part of a document transferring the ownership of property.

The second way in which an easement can be created is by means of prescription or long user. In simplistic terms, this means that the owners of one property have exercised rights over another person’s property for sufficiently long to have established an enforceable right to do so. To have established a right by this means certain tests must have been met. In short, the activity must have been carried out as of right and without the landowner’s permission or payment, the activity must not have been carried out in secret and must not have involved the use of force. Finally this activity must have been carried on for at least twenty years. A right acquired by long user has a clear drawback however and that is that it can only ever be used in the manner and for the purpose it has always been used.

If a property owner’s rights or easements have been blocked or interfered with, what can they do? Firstly, they need to understand exactly what their rights are. If there is a document dealing with this they need to make sure they review it and understand its terms. It can quickly help to resolve matters if a property owner is able to show to the other owner a document confirming their rights. If the right of way has been acquired by long user, the situation is often much less clear. If a property owner has or feels they are about to have difficulties with a neighbour relating to rights of way or other easements they really should consider consulting a Solicitor specialising in this area as quickly as possible to ensure that they fully understand the rights then, armed with clear understanding of the situation, they may be able to resolve or head-off any dispute with their neighbours before relations sour too much.

If the situation is one which cannot really be resolved by a neighbourly discussion then it may be necessary for the parties to refer the matter to their Solicitors who may be able to reach a resolution between the parties by explaining the relative strength of their arguments to their respective clients and reaching some agreement in correspondence.

Ultimately, if discussion between the parties does not resolve matters, and one party is sure of their ground, their legal representatives would be able to bring an action in the hope of obtaining a Court injunction to prevent interference with or interruption of the right in question and, if the appropriate in the circumstances, damages.

Of course, taking Court action or even threatening Court action between neighbours should always be very much a last resort, particularly if the parties intend to continue to live next door to each other in any sort of a harmonious way.

Please note: This article is intended as guidance only. No responsibility for loss occasioned/costs arising as a result of any act/failure to act on the basis of this article can be accepted by Latimer Hinks. In addition, no responsibility for loss occasioned/costs arising as a result of any act/failure to act on the basis of this article can be accepted by the firm.