Right of way disputes

Starting or defending a court claim involving rights of access to neighbouring land are time-consuming, stressful, and expensive. There are always inherent risks with any legal dispute and these types of disputes, like all forms of neighbour disputes, are notorious for resulting in significant financial risks which generally outweigh any common sense assessment.

As a result, it's highly advisable to get experienced legal advice at an early stage and seek a resolution wherever possible.

At Taylor Rose, we have significant experience of advising on rights of way issues. Please do get on contact to discuss how we can help you.

What is a Right of Way?

A right of way is a legal right to use a path or passageway across someone else's land. It can be public or private. A public right of way is a path that anyone can use, while a private right of way is restricted to specific individuals or groups.

An easement is a legal right to use or do something on another person's land for a specific purpose. While a right of way is a specific type of easement, easements can also cover other uses, such as access to utilities or the right to park on someone else's land.

How to Prove a Right of Way under English law

The easiest way to prove you have rights of access in relation to a neighbouring property is if the right is registered on the Land Registry title of the neighbour property. This is clear and legally definitive evidence of the right but there can still be disputes about the exact extent of the right or where the right has been used differently in practice historically. Anyone can search the Land Registry and obtain a title to a property as long as the land is registered (which almost all land now is in England & Wales).

The other type of right of way or easement is generally known as a Common Law Right, which essentially means the alleged right is not registered on the title at the Land Registry and proving the right exists is therefore more difficult, relying on evidence such as historical maps, documents, or witness evidence.

Right of way by prescription or necessity- what's this?

If a right of way has been used continuously and uninterruptedly for at least 20 years, it may be possible to establish a prescriptive right, which is a type of common law right.

With a right of way arising due to necessity, an example of this would be a situation where without a right of way being inferred (by the courts if necessary) a property owner could not legally access the public footpath or highway from their property. 

Common Causes of Disputes

Disputes over rights of way and easements often arise due to:

• Boundary disputes - uncertainty about the exact location of property boundaries.

• Changes in land use - development or other changes that affect the use or enjoyment of the path or easement. In the context of a lucrative potential redevelopment of land, an existing or claimed easement or right of way can create major issues. In this situation the right of way can potentially be worth a considerable amount of money in terms of possible negotiations to formally cancel or waive it,

• Disputes between neighbours - personal disagreements or misunderstandings, which may relate to access or issues such as use of shared driveways.

Key Points to Remember

• Registered rights offer greater certainty and protection.

• Common law rights can be more difficult to prove but may still exist.

• Prescriptive rights can be acquired through long-term use.

• Legal advice is essential for understanding and protecting your rights.