Use of private rights of way
As we all move around, in towns and villages and in the countryside, we mostly make use of public rights of way. But there are also such things as private rights of way, to which private rights of way law applies. The scope of private rights of way — or the lack of an adequate right of way — can radically affect the use and value of land. A private right of way entitles one landowner to pass over another piece of land in order to get to their own land. The right is regarded as being attached to the first piece of land, while the other pieced is subject to it. Private rights of way are in the class of rights known legally as “easements”. These are various rights which give one landowner limited use of someone else’s land nearby.
Private rights of way are almost always permanent: the two pieces of land may change hands as the years go by, but the right of way remains in place. One landowner can give a neighbour permission to pass over their land, but so far as the law is concerned this is merely a personal matter between the two landowners. It can’t create a permanent legal right. Some examples of cases where a permanent right of way is needed:
• A pair of houses shares a driveway: ownership of the driveway goes with one of the houses , and the other house has a right of way over the driveway.
• A row of terraced houses has rear access to gardens via a path or track, over which each house has a right of way
• A road is private (i.e. “unadopted” – not taken over by the local highway authority). Private roads can sometimes be subject to public rights of way; but if there isn’t one, each house will need a private right of way over the road.
The pieces of land benefiting from private rights of way don’t have to be houses. A farmer might, for example, have a right of way over a neighbour’s field in order to get to his own field.
Creation of private rights of way
A private right of way can be created by deed, executed by the two landowners concerned. If the two pieces of land are registered on the Land Register, the existence of the right of way should be shown on the title of land subject to it. It may also be shown on the title to the land which has the benefit of it. The deed may provide that the right can be used at all times and for all purposes. But private rights of way law allows the use to be limited either (a) by referring to the traffic which may use the froad or path in question: for example, only pedestrians and cyclists, no lorries over 10 tonnes in weight or over two metres wide, or no commercial traffic of any kind. Alternatively, it may (b) refer to the land with the benefit of the right of way: for example by saying that the right of way exists so long as there is no more than one house on the land, or so long as the land remains in a particular use such as a garden, or a school. Nowadays, limitations in the use of private rights of way are common: the owner of the land subject to the right of way wants to make sure that the right does not interfere too much with the use of her land. Such rights can also be created by the legal process known as “prescription”, in effect, use over a period of 20 years. The use has to be “as of right”, meaning that the person going to and fro over someone else’s land, to get to their own land, must be acting as though they had the right to do so. Use won’t be “as of right” if:
• Force is used or threatened, or the landowner has made clear, for example by putting up a notice, that she objects to the use which is taking place
• The use takes place secretly
• Permission has been given by the owner of the land
During the 20 years, the landowner going to and fro will be trespassing. But private rights of way law nonetheless says that a legal right will be created after 20 years. It does not have to be the same landowner doing the trespassing: use by a succession of landowners can be added together to make up the 20 years. A right of way created by prescription is not limited to the precise use which has taken place: the concept is more elastic than that, and can extend to a good deal more of use. Landowners need to be careful not to allow private rights of way to arise by failing to take action against trespassers.
Responsibility for private rights of way
Questions may arise about the maintenance of a right of way. Private rights of way law provides that, in the absence of agreement between the two landowners:
• A landowner who grants a right of way over their land is not automatically obliged to lay down a proper surface or carry out other work.
• The landowner whose land will have the benefit of a right of way can enter the land subject to the right of way, and lay down a surface and carry out any other necessary work.
• After that, neither landowner is under an obligation to carry out maintenance or repair work.
• The landowner whose land has the benefit of the right of way can carry out maintenance and repairs; but they cannot carry out improvements (such as upgrading the surface, or installing lighting) without the consent of the other landowner.
The two landowners involved (i.e. the current owners of the two pieces of land) can if they wish to cancel or modify any existing rights of way, whether created by deed or by prescription. It sometimes happens that a right of way has fallen into disuse and has not been exercised for a long period. However, the courts are reluctant to conclude, except in the clearest cases, that the right of way has been deliberately abandoned.
Help from Property Law Advice
For the sorts of issues which arise in practice, and on which we can offer advice, please see our Private rights of way page. If you’d like a quick response, to see whether we can help, please see our Initial enquiry page.
[icon name = “binoculars”] For our print publishing website, please see www.barsby.com, and for our website which provides support for residents in private roads, see: www.privateroads.co.uk. [icon name = “binoculars”] For our print publishing website, please see www.barsby.com, and for our website which provides support for residents in private roads, see: www.privateroads.co.uk.