An explanation of your legal options
Many UK land owners benefit from a private ‘right of way’ (or easement as they are also known), which gives them rights, including the legal right to cross over land belonging to someone else via a defined route usually for a particular purpose – for example, to reach their property from the public highway.
How is an easement created
To be classed as an easement, there must be land which benefits from the right of way (the dominant land) and a separate piece of land, owned by someone else, over which the right is exercised (the servient land). The right must also be grantable (ie, it must be a right that can allow a positive act to be carried out on the servient land).
An easement can be formed in three different ways. These are by:
- deed;
- prescription; or
- implication.
Easements created by deed
The easement which creates the most certainty is one granted by a written deed. This deed could form part of a wider document as part of a land transfer via lease or sale, or as a separate document; either way, it should include the terms of the easement and be signed by all parties.
If you have been granted an easement by deed from a leasehold or freehold estate, this will operate as a legal interest in the land, provided you register it on the property title at the Land Registry. Until it is registered, it will operate as an equitable easement which, unlike a legal easement which binds all purchasers (regardless of knowledge), only binds a buyer who knew about the easement.
It is not possible to register an easement against unregistered land (although an equitable easement can be registered as a land charge if created after 1925). However, if you have an easement over unregistered land, you can lodge a caution against first registration of the servient land, so that if someone applies to register the land, the easement would be recognised at that time.
Easements created by prescription
If your right of way is not contained in a deed, it is possible to acquire an easement through long use via the doctrine of prescription. Under the Prescription Act 1832, a prescriptive easement may arise if the servient land has been used in the same way for more than 20 years ‘without secrecy, force or permission having been granted by the servient land’s owner for that purpose’.
A prescriptive claim could fail if the servient landowner gave you permission for the use of the land either in writing or orally. In addition, a prescriptive easement cannot arise over let land unless the right was exercised before the land was let.
Easements created by implication
Easements can arise by implication at common law in three ways:
- Necessity –this would arise, for example, if your neighbour sold a piece of their land to you and you could only reach your property by crossing part of the seller’s retained land.
- The rule in Wheeldon v Burrows – if the dominant and servient lands were previously owned by your neighbour, an easement will be implied. You will be entitled to the continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of your property that were enjoyed while the two properties were under the same ownership.
Common intention – if it can be shown that both parties intended to agree an easement, then one will be implied (for example, if a piece of land is sold to be developed but the only way of reaching the development site is through the retained land, an easement would be required to reflect the common intention even if it was not written into the deed of transfer).
What are the limitations on rights of way?
There will usually be express or implied limitations on your use of the right of way, depending on what is written in the deed or how the route has been historically used. For example, the right of way will generally be limited to a certain area over a certain route, or may be available for pedestrians only and not vehicles.
What can you do if someone blocks your right of way?
If your right of way is blocked, you are entitled to use a reasonable alternative path, provided you do not encroach onto a third party’s land. If no alternative route is available and your neighbour refuses to remove the obstruction, you can take legal action to obtain a court order requiring your neighbour to clear the blockage.
You will only succeed if you can show that your neighbour’s interference with your right of way is substantial. What amounts to substantial interference is assessed on a case-by-case basis, but it must have more than a trivial impact on your enjoyment of the right.
So, if for example, they installed an unlocked gate on the route, this might not be considered substantial, but if the gate was locked and you were not provided with a key, this is likely to amount to substantial interference.
Can someone get your right of way lifted?
Getting a right of way revoked is complicated and a court will not usually allow it without the users agreement – even if the right of way has not been used for many years, it is extremely difficult to argue that the right should be extinguished. If you do agree to allow the right to be removed, you might be entitled to ask for payment by way of compensation to be paid to you before you are agreeable to signing the formal paperwork to record the removal, known as a deed of release.
How a solicitor can help
If you are having problems with your neighbour over the use of a right of way across their land, contact our team of specialists for expert legal advice.
We can establish the legality and basis of your right of way, help register unregistered easements and negotiate with your neighbour to reach a solution that is acceptable to all.
If your neighbour cannot be reasoned with, we will take all legal steps necessary to obtain an injunction, requiring your neighbour to stop their interference with your reasonable enjoyment of your property. For further information, please contact Helen Townsend in the dispute resolution team on 01733 882803 or email [email protected].
Helen Townsend LLB (Hons), Partner
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