Private Rights of Way

Private Rights of Way

Our Property Dispute Resolution team specialises in advising and representing parties in relation to disputes concerning private rights of way.

Express agreements

In many cases, a right of way is created expressly by a written agreement between landowners.  There are two common scenarios:

First, when selling part of his land to another party, the seller considers it necessary to reserve a right of way over the land he is selling, i.e. so that the land he is retaining can continue to benefit from the ability to cross the land being sold.

Second, when a seller is selling part of his land to another party, both the buyer and the seller may agree that the buyer should be granted a right of way over the land the seller is retaining, i.e. for the benefit of the land being sold.

Where a right of way is created expressly, we can usually tell the nature and extent of the right of way granted or reserved by reading the document that created it.  However, the position is often more complicated where a right of way may have been created by implication (i.e. rather than expressly).

Implied rights

A private right of way can be implied in a number of circumstances.  One of the most common scenarios is where a seller sells only part of his land to another person and retains the remaining part for himself.  Even though the legal documents giving effect to the sale say nothing about granting a right of way to the buyer over the land being retained by the seller, the law will imply the grant of a right of way in certain circumstances.

Such circumstances are not uncommon, but they are very fact sensitive and we have to consider whether a right of way may have been created on a case-by-case basis.  This is something we can consider with you in more detail if it is relevant to your case.

Length of use

Another method of acquiring a private right of way is through length of use.  This is a fairly well-known method of acquiring a right of way.

Put simply, you can usually acquire a right of way over someone else’s land provided (1) you have been using the right of way with sufficient regularity for a period of at least 20 years, (2) the right of way somehow benefits land you own or of which you are a tenant, and (3) you have not been using the route in secret, by force or because someone has given you permission to use it.

The extent of the right

Even if a right of way does exist, the next question which must often be considered will be the extent of the right.  Can it be enjoyed only on foot or can it be enjoyed with a vehicle?  If it can be used with a vehicle, then what types of vehicle can be used?  Can it be enjoyed with animals, such as horses or livestock?

The answer to these questions will often depend upon how the right of way came into being.  For example, where a right of way is created by a document, we have to look at what the document says about the nature and extent of the use to which the right of way can be put.  Where the right of way is acquired over time, we have to look at the sort of use that gave rise to the right in the first place.  So 20 years use on foot is unlikely to be enough to give rise to a right to use with a vehicle.

Our specialist Property Litigation Team regularly advises clients in relation to private rights of way issues:

We recently acted for a family when their neighbour claimed a right of way through their garden.  We succeeded in defeating the claim at trial and the neighbour was ordered to pay our client’s costs.

We have also acted for the owners of a farm who were claiming a right of way across land lying between the farm and the public highway.  The owners of the neighbouring property conceded the right of way shortly before trial and agreed to pay our clients’ costs.

We have acted for a couple who are claiming a right of way against the Vale of Glamorgan Council.

The information on this page is intended to provide an overview of what is a very complex and specialist area of law.  It is not a substitute for obtaining legal advice that is tailored to the facts of your particular case and the needs of your particular circumstances.  For further advice or assistance, please do not hesitate to contact one of our specialist solicitors to discuss your concerns on a no-obligation basis.

Contact us at propertydisputes@berrysmith.com or 029 2034 5511.