Last month we looked briefly at a number of the types of dispute we regularly come across at Levi Solicitors LLP. We will now look in a little more detail at these types of dispute. Firstly, rights of way.
How do I acquire a right of way?
There are various ways to create a right of way over land. The most straightforward way would be to expressly grant a right by deed. Alternatively, there are times when a right of way might be implied as a result of the actions of the parties historically. Perhaps surprisingly to some, however, even if no one has given you permission to go down a particular road/path/driveway, if you have done this for a long time, you may have gained yourself a right! This is called prescription, and we will look at this in more detail below.
‘But I’ve always used this pathway’
In the eyes of the law, a right of way used for a long period of time is a legal one – great! But no rule of law is complete without some exceptions:
• The right of way must be used without force, secrecy or permission. If there are signs stating that your neighbour’s land is private, then you may not have a right of way just because you’ve walked up that same snicket every evening for 21 years. Likewise, if your neighbour gives you a vague permission to use the snicket (not by deed), this may invalidate any claim for a permanent right of way;
• The use must be continuous. Any long, unexplained gaps may mean you don’t have a legal right of way. This is not to say should cancel your two-week holiday, but a year is likely to be too long;
• The right must be one that could have been lawfully granted. So if the neighbouring land is common land, and the neighbour has no authority to grant you a right of way, you cannot obtain one through the back door by prescription.
There are other exceptions of course, but if you aren’t sure, get in touch!
How long is long enough?
There are various historic laws covering the ability to acquire a right of way by continuous use. For the most part, however, these require you to use the right for at least 20 years. This can be by you only, or by you and the previous owners of your property.
So, you think you’ve got a right of way?
For extra protection, you may wish to apply to the Land Registry to register your right against the title to your property.
‘Help – I’ve been served with an application!’
When someone applies to register a right of way, it is served on the owner of the land. But don’t worry, you can object to the application. If the applicant still decides to go ahead, be prepared to either negotiate a settlement, or have the dispute referred to a tribunal.
If you would like advice on a right of way issue, please contact our Property Disputes team on 0113 244 9931.