Conveyancing: Rights of Way

| What is a Right of Way?

A right of way is a legal easement which provides a right of way to travel across a plot of land owned by another. Some rights of way are not for the sole use of people and can expand to include use for horse riders, cyclists, or motorists. These tend to include use over footpaths, bridleways, and byways.

How is a Right of Way created?

A right of way tends to arise when parcels of land are being sold off for the purposes of splitting the land into smaller parcels, and in doing so rights will need to be both established and provided to occupants of the land and their property titles. A basic example of a right of way is shown in the diagram below: –







From the public highway, Mr A would not be able to access his property either by foot or with vehicular access without first passing through Mrs B’s land. As you will see from the diagram, part of Mrs B’s land has been split in order to provide access for Mr A and therefore a right of way has been established. This right of way will allow Mr A and any future owners of the title to use the right of way, as the right will remain on both Mrs B and Mr A’s property title and continue to run with the land.

| What happens when someone interferes with a Right of Way?

Further to the above diagram, if Mrs B were to restrict access to Mr A and block off the right of way. For example, to stop Mr A from leaving a gate open on the right of way, then Mr A could explore a claim against Mrs B for interference with the right of way over the land.

When looking to bring a claim in these circumstances, the interference must be considered to be substantial, meaning this would physically affect or restrict Mr A from using the right of way to access his property or land.

As you can imagine, with disputes such as these the circumstances vary based on the details provided. It is therefore important to seek advice to confirm whether the interference is substantial, so that you are then able to decide on how to move forward with the matter and confirm the prospects of the outcome.

Subject to establishing the right and the interference being of a substantial nature, the court can issue injunctions against offending parties. A successful claimant in these circumstances could expect that the court would make an order for costs against an unsuccessful defendant, although that would be subject to the circumstances of the case and the discretion of the court.

| Can a Right of Way be removed from a title?

A right of way can be removed from a property title by way of a deed. If drafted, a deed of release would need to demonstrate that both parties to the right of way no longer have use of this and agree to release the right. Should the terms of the deed be satisfied, then the right can be removed, and this would extinguish the right meaning that it would not be possible to revive the right, with the grant of a new right being the only way to reinstate the status quo.

If you have any queries regarding residential property disputes, we can help. Contact our residential property disputes team today on 0800 988 7756.


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