Rights of way disputes with neighbours are one of the most common forms of property litigation in England and Wales. They arise from uncertainty about the existence of a right of way, its precise route, its extent, or the circumstances in which it can be used. Understanding the legal basis of any right of way, and the options available when a dispute arises, is the starting point for resolving the situation.
A right of way is the legal right to pass over another person's land. It is a form of easement, which is a right that attaches to one piece of land for the benefit of another. Rights of way can be over land for the purpose of pedestrian access, vehicular access, or both. The extent of the right, including the surface over which it passes and the uses for which it can be exercised, is defined by the document that created it or by the circumstances in which it was established.
Rights of way can be expressly granted in a deed or conveyance, or they can be implied from the circumstances of a transaction. They can also be established by long use, through a doctrine known as prescription, where the right has been exercised openly and without permission for a period of 20 years.
Disputes about rights of way typically arise in a number of common situations. One neighbour may physically obstruct or block the route over which the right is claimed. There may be a disagreement about whether a right of way exists at all. The parties may agree that a right of way exists but disagree about its exact route or extent. One party may be exercising a use that the other considers to go beyond the scope of the right.
In rural areas, disputes about access across fields or tracks are common. In urban areas, disputes often arise about access over private driveways or passageways between properties.
Our property law barristers can advise on the legal basis of any claimed right of way and the options available to resolve a dispute.
The starting point for any right of way dispute is to examine the title documents for both properties. Registered title documents, available from the Land Registry, set out the registered rights affecting each property. Unregistered land may require a review of historic title deeds to identify what rights were granted or reserved in historical conveyances.
Where a right of way was expressly granted, the grant document will define its scope. Understanding what the document actually says is often the most important step in resolving a dispute, as many disagreements arise from different interpretations of the same document.
Not every right of way dispute needs to go to court. Negotiation and mediation are both available as alternatives to litigation, and in many cases they can produce a faster and cheaper resolution. Where the parties can agree on the scope and route of the right of way, that agreement can be recorded in a formal deed that is registered against the titles of both properties.
Where agreement cannot be reached, an application to the court can be made. The court can determine whether a right of way exists, define its scope and route, grant an injunction to prevent obstruction, and award damages for any interference with the right that has already occurred. Getting legal advice at an early stage helps you understand which route is most appropriate for your situation.
To find out how a direct access barrister can help you move forward with your right of way dispute, contact us here.