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Rights of Way

Rights of Way

Dispute lawyer David Tew looks at one of the most common forms of dispute - rights of way.

One of the most common forms of dispute we deal with concerns the issue of whether or not a right of way exists over land.

Many people become fixated on what it says in their property deeds. If there is nothing expressly stated in their deeds, they believe there is no possibility that a right of way exists.  This is not necessarily the case.

There are a number of different ways a right of way (or “easement”, to give it its legal terminology) can come into existence.  One way is indeed to have it agreed and expressly stated in your property deeds.  However, the following list sets out the other means by which a right of way can come into being:-

  • Expressly, by an Act of Parliament (“statute”).For example, various Acts of Parliament give special powers to utility companies (for example, gas, water and electricity companies) to enter onto private land to install pipes and cables for their public supply.
  • Expressly, through a Will. Rights of way can be created by will where the deceased leaves different parts of land to different beneficiaries.
  • Impliedly, by necessity. This can happen where part of a piece of land is sold and there is no other legally enforceable means of accessing and using the sold or retained land.However, the test of necessity can be difficult to satisfy.For example, in one court case, it was decided that the test of necessity was not met where it was possible to access the land in question by water.
  • Impliedly, by common intention of the parties.This can happen where part of land is sold and:
    • it is possible to demonstrate that the parties to the transaction shared a common intention as to how the sold / retained land should be used
    • a right of way is necessary to carry out the intention.
  • Impliedly, under the rule in Wheeldon v Burrows. This relates again to the scenario where part of land is sold.The test operates in favour of the buyer to grant “quasi-easements” over the retained land. The test that must be met is as follows:-
    • The easement(s) must be necessary for the reasonable enjoyment of the part of the land being sold;
    • The easement(s) must have been used, and be being used at the time of the sale, by the seller to benefit the part of the land being sold;
    • The easement(s) must be continuous (not used intermittently) and apparent (e.g. a permanent feature on the land signalling the right of way).
  • By prescription (long use) using one of the following:-
    • Common law prescription (20 years continuous use, as of right (without secrecy or the need for permission), at the time of the grant there would have been two competent parties (grantor and grantee), the grant, is made expressly, would have been legal and there is no other obvious explanation for use of the land).  The 20 years use must be ongoing at the date the argument for the existence of the right of way is made.
    • Lost modern grant (the same as common law prescription save that the 20 years use need not run right up to the date the argument is made).
    • Prescription Act 1982 - introduces two new forms of prescription based on 20 and 40 years of use (or 30 and 60 years for the right to take something from another’s land).
  • By equity (“fairness”)
    • E.g. under a contract to grant a right of way which is never completed
    • By virtue of ‘proprietary estoppel’ – where:
      • A allows B to believe B will have the right to some benefit over A’s land;
      • B acts to his/her detriment in reliance on this belief, and A knows about it;
      • A then seeks to advantage him/herself by denying the right to B.

So, what it says in your deeds does not necessarily give you the full answer as to whether or not your land has the benefit of or is subject to the burden of rights of way.

If you have any concerns or questions regarding rights of way, please contact me at dt@burnetts.co.uk or on 01228 552222.

About the author

Published: Tuesday 9th February 2016
Categorised: Personal Disputes

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