A right of way is a legal right to travel over land belonging to someone else. The right may be a right of way on foot only or it might be a right on foot with or without vehicles.
A right of way is called an easement because it is a means by which a person grants a right to another, which makes it easier to use their own land, hence the phrase “easement.”
There are two rights of way in English law – private rights of way and a public right of way. In this article, I will concentrate on private rights of way.
The surest way to create an easement is by formal Deed. Granting a right of way this way is to be preferred because the exact extent of the easement can be set out. However in certain circumstances an easement will be implied if not explicitly stated. The implied rights of way can be used as follows.
If a land owner has for at least twenty years acted as if they had a right of way then it is presumed that a right of way exists even if no Deed granting it can be found and this is known as a right by “prescription”.
A right can be implied by law. Where for example, a right of way is necessary if there are no other means of access or if you are landlocked. This is called an easement of necessity.
Another way an easement can be implied is under s62 of the Law if Property Act 1925, which states that conveyances of land or of land with buildings on
“shall be deemed to include and shall by virtue of this Act operate to convey, with the land … or … buildings, all … ways … privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
For this section to operate, it must not be excluded from any Transfer of land and the easement must be necessary for the reasonable and convenient enjoyment of the land which is being sold.
Disputes over a right of way can occur if someone blocks or restricts the right of way, if someone wants to change the route of the right of way or when someone claims additional rights.
If someone is causing problems with your ability to use a right of way the law refers to this as an interference. Not every interference with a right of way will be actionable in the Court. Case law suggests that if despite the obstruction you can use the right of way as conveniently and practically as before then there will be no interference. The Court will be concerned whether your insistence on being able to use the whole right of way as it was originally granted to you is reasonable and this will very much depend on the circumstances of your individual case.
Kate Maslen, dispute resolution partner based in our Exmouth branch, regularly deals with interference with right of way and disputes over right of way and can be contacted at katemaslen@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
