Right of Way Disputes

Right of way disputes are common amongst neighbours, especially those who are unclear of the extent of the right of way.

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What is a Right of Way?

There are two types of right of way in the UK; public rights of way and private rights of way. A public right of way is a legal right for members of the public to pass and re-pass over a specific piece of land. Public rights of way are found all over the country and can take the form of footpaths, bridleways, restricted byways, and byways open to all traffic.

A private right of way, on the other hand, is a legal right for a specific person or group of people, normally to pass and re-pass over a piece of private land. Private right of ways may exist for a number of reasons such as providing access to a public highway, agricultural land, recreational land, residential property or utilities.

Understanding Easements

Private rights of way frequently become a point of dispute between neighbours, so it is important to understand the different types of right of way and how they are created. Private rights of way are granted by an “easement”; generally there are 3 types of easement - an express grant, implied grant, or long use.

Express Grant

An easement created by an express grant is the most common type of private right of way in the UK and are often created when land is sold or divided. An express grant must be written down and is typically found in a deed made at the time of sale of the property. Express grants typically provide the seller of the land access or use of the land sold after the sale has taken place. Express grant easements can also be put in place for a fixed term, for example while a new house is being built.

It is also important to note that usually the person who will benefit from the easement pays for the preparation of the deeds but this can sometimes be negotiated.

Implied Grant

An implied grant easement is where the rights are implied by law but not specified in a deed. Implied grant easements typically arise when a landowner sells their property, for example where piece of land adjoining to another is sold and the only method of access for the seller’s remaining land is through the piece that was sold.

Long Use

Long use easements are granted when land has been openly used by a non-owner without permission from the owner. This type of easement will allow for the continued use of the land in this way if the beneficiary of the easement has been using the land continuously for at least 20 years.

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Common Issues in Right of Way Disputes

When it comes to rights of way disputes, there are a number of reasons why they may arise. 

Substantial Interference

Substantial interference in rights of way refers to any interference that prevents or significantly hinders the use of a right of way for its intended purpose. The courts will consider a number factors when deciding if the interference is substantial, such as:

• The nature of the interference.
• The extent of the interference.
• The impact of the interference on the users of the right of way.

Some examples of substantial interference include:

• Erecting a fence or gate across the right of way.
• Digging a ditch across the right of way.
• Dumping rubbish on the right of way.

These are just some examples of what the courts may view as a substantial interference but each case is likely to be fact-specific so this is not a complete list and some of the example above also have exceptions to the general rules. If you believe that your neighbour has substantially interfered with your right of way, contact our solicitors today to seek advice and further guidance on your case. 

Unauthorised Land Use

Unauthorised land use in rights of way is any use of the right of way that is not permitted by the easement or by law. This could include actions such as:

• Erecting structures on the right of way (e.g. fences, gates, or buildings).
• Placing objects such a vehicles or machinery on the right of way.
• Change the surface of the right of way (e.g. by digging it up or paving it).
• Using the right of way for purpose that is not permitted (e.g. driving a car on a footpath).

Managing Rights of Way Disputes

It is highly recommended that you seek the advice of a solicitor when looking to resolve a right of way dispute. The best course of action in resolving the dispute can vary depending on the details of the case and points of contention within the dispute itself.

However, there are some important aspects to consider such as maintaining friendly relations and knowing the boundaries of the properties involved with the dispute.

Maintaining Friendly Relations

Maintaining friendly relations with the other party involved with the dispute is an important aspect for the continued use of the easement. If the dispute cannot be resolved internally, there are steps that can be taken to maintain the relationship, for example through the use of mediation to resolve the dispute outside of the court system. Neighbour disputes and right of way disputes can impact on the value of your property and how easy it might be to sell at a later date, so it is important to maintain good relationships with neighbours wherever possible. 

Knowing Property Boundaries

Understanding your property boundaries is another important aspect of managing a right of way dispute. By knowing your own property boundaries and where the right of way begins can help determine where actions have been taken that are not permitted within the grant of easement.

How Lovedays Solicitors Can Help

With dispute resolution or court proceedings the longer the issue is left the worse it can get. If you have an issue please do not hesitate to contact us for an initial consultation.

Our team can help guide you through the best course of action for your case as well as undertake mediation between the parties involved in the dispute. In addition to this, our property lawyers can also negotiate on your behalf or represent your interests in court.

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