Freehold Right of Way Disputes Freehold Right of Way Disputes

Does a right of way always have to be in writing?

No. There are circumstances in which a right may arise even if it is not expressly set out in a deed, such as:

• prescription at common law or under the Prescription Act 1832. A right arises by prescription if certain conditions are met and the right has been exercised as of right, meaning without force, secrecy or permission, for at least 20 years up to the date of the claim;
• the doctrine of lost modern grant. Similar to prescription, this common law rule applies where the claimant can prove at least 20 years’ use as of right. Unlike claims under the Prescription Act 1832, the 20-year period of use does not need to immediately precede the claim, making the doctrine more flexible in certain circumstances;
• the rule in Wheeldon v Burrows (1879), which creates rights in certain circumstances where part of a property is sold off and, prior to the sale, the owner was exercising those rights or quasi-easements over their own property;
• section 62 of the Law of Property Act 1925, which has the effect of conveying rights benefiting a property with the land when it is sold, even if those rights are not expressly referred to in the deed. The effect of s.62 is often excluded from conveyances and the exact wording of the document should be carefully considered; and
• necessity. Although more difficult to prove, rights may be implied into a deed in certain circumstances if they are reasonably necessary for the use of the land. The argument for a right of way arising by implication will be more compelling if the land would otherwise be landlocked without it.

Do I have to go to a court or tribunal to claim a right of way by prescription?

Not always. For registered land, it is possible to apply to the Land Registry to register a formal legal right against the property subject to the right of way, known as the burdened land. The owner of the burdened land will then have an opportunity to dispute your claim, but if they fail to do so, the right will be registered.

What is the difference between an easement and a licence?

A right of way in the form of an easement is a formal property right which lasts indefinitely and can be transferred from person to person alongside the land it benefits. A right of way contained in a licence is a contract which will generally allow a specific person or persons to cross over land subject to the exact terms of the licence. Although it may be possible to assign the benefit of that contract, that will depend on the exact terms and may be subject to payment of a premium. A licence is generally a less favourable arrangement than an easement.

My neighbour has obstructed my right of way – what should I do?

You may be entitled to a court order requiring them to remove the obstruction and pay you compensation for any loss you have suffered. The first step is generally to write to them, giving them an opportunity to remove the obstruction before you escalate the matter to court.