Right of way disputes: Establishment, disputes, and legal considerations

What is a right of way?

A right of way can be defined as “The legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another.”

How are rights of way established?

• Express right of way – an express right of way may be granted by a deed. 
• Implied right of way – The Law of Property Act 1925 confirms that, when a property is sold, the land will include the benefits of any existing rights of way.
• Prescriptive right of way – After continued use over a prolonged period of time, without permission, a right of way used can become recognised and lawful.
• Right of way by necessity – a plot of land has a right of way by necessity over adjoining land if their land is “land locked.”

How do right of way disputes occur?

• When someone blocks, interferes with or restricts the right of way
• When trying to decide who pays for the maintenance of the right of way
• When someone wishes to change the route of the right of way
• When someone claims additional rights
• When a development is planned over the right of way or which will interfere with the right of way

The most common type of disputes relate to obstructions to the right of way or disputes as to whether a right exists at all.  Most have a combination of the two. In other words, you may have been using a right of way for some time or only use it every now and again but your neighbour does not believe you have the right to enter their land and takes steps to stop you by obstructing the access such as locking a gate or placing some other physical obstruction on the right of way.  

Alternatively, a neighbour may have started trespassing on your land or using more of your land than they may be entitled to, claiming to do so under a right of way and you are seeking to stop them doing so.

Dealing with right of way disputes

In the first instance it is essential that you are certain of the extent of your property, where the boundary is and/or any rights of way over the property.

It is important to get legal advice before taking action yourself, as easement disputes are likely to be easier to resolve if you remain on better terms with the other party.

If you are unable to resolve your dispute, you may need to go to Court.  This may involve seeking a declaration in connection with your claimed right of way, for example, or an order preventing your neighbour obstructing you from using it or it could be you seeking an order to stop a neighbour trespassing on your land where they do not have a right to do so.

A developer is using a small part of my right of way

It may be that a developer is seeking to use part of the land over which you have a right of way, but not all of it. If the interference is not “substantial” (and each individual case will depend on its own particular facts as to what substantial means in practice), then the use of that piece of right of way land by the developer may be lawful. A person with the benefit of the right of way does not have the right to pass over every inch of their right of way, if they can exercise their rights perfectly well without doing so.