Private rights of way allow the owner of one piece of land to access their land by crossing another piece of land. They are needed when there is no public access to the land in question. Public roads and paths provide access in most cases; but there are also many situations in which private rights of way are necessary. Terraced houses, for example, often have the benefit of a path or track giving access to back gardens. The path or track won’t usually be a public highway: each house in the terrace will need to have a private right of way over it.
Private rights of way are a form of legal property – an abstract legal “thing”. They can’t exist on their own; they have to be attached to one piece of land, giving a right of way of way over another piece of land. Because they are, legally speaking, in the nature of land, a deed is required if two landowners wish to create a right of way. The deed, executed by them both, will make clear that the right of way is attached permanently to one piece of land, for the benefit of the other. It will then apply to subsequent owners of the two pieces of land.
(A landowner is free to to let another use his land temporarily, for example for access, or parking a car; but this will be regarded by the law as a purely personal arrangement between the two of them, and will not create a permanent legal right.)
While permanent rights can be created by deed, they can also arise by use over a period of time, a process which the law calls “prescription”. Suppose that, in the diagram, without asking A for permission, B starts to cut across A’s yard, as a shortcut to his house. B will be trespassing, and A could take action to stop him.
But if B carries on for 20 years, acting openly, as though he had the right to cross yard, he will have acquired, by prescription, a permanent right to do so. The registered title of A’s yard will show that it is subject to B’s right of way, and the right can also be noted on B’s registered title.
One way to prevent the creation of a pre-prescriptive easement is to give permission, as A could do in the above example. Another way is to make it clear that use is taking place under protest. A could thus put up a notice the entrance to his yard saying “No access to B’s house”. It would then be clear that B was not acting as though he had the right to cross the yard.
The scope of a private right of way created by deed will depend upon the terms of the deed. Private rights of way can be, and often are, granted in terms which limit the use which can be made of them, and therefore indirectly limit the use of the land which has the benefit of them. (In this respect they serve the same purpose as restrictive covenants).
In some cases, a private right of way is granted in unlimited terms. But this can be misleading: the courts may take into account what the parties must have intended at the time. A narrow winding lane cannot have been intended for use by combine harvesters or double-decker buses!
When a right of way is acquired by prescription, the scope of the right will depend upon the use which has actually taken place. However, the position is not entirely straightforward, since a certain amount of additional use will nonetheless be regarded as within the terms of the right. The courts will ask whether there has been a “radical change in character” of the land subject to the right of way, and also whether the additional use will mean a substantial increase or alteration in burden of the land subject to the right. There is, in other words, a certain elasticity about prescriptive rights of way.
Surprisingly, perhaps, the law does not automatically impose a duty to maintain a private right-of-way, either on the landowner whose land is subject to it, or the landowner whose land has the benefit of it. The basic position is that the former can improve or upgrade the road or path if she wishes, but the latter can only repair it so as to keep it in the same condition. If, however, the right of way has been granted by deed, the deed may alter the rights of the parties.
Rights of way should be distinguished from the right to park on land. Both rights can be granted by deed; both can be acquired by prescription. But a right of way does not carry with it a right to park on the land subject to the right, save in rare cases where the right cannot sensibly be exercised unless it is possible to park as well. This will be so if (as in one case) the right of way ended at the top of a cliff, from which point people had to proceed on foot.
Potential areas of difficulty, where specialised legal advice may be needed, include:
Whether a right of way has been created by prescription, and if so what is its scope.
Whether, in the case of a right of way granted by deed, there has been a breach of any limitations written into the right
Whether the use of a right of way is subject to an obligation to pay for the maintenance of the road or path.
Whether a right of way along a road includes the right to construct a different access point or multiple access points.
Whether a right of way has been wrongly interfered with by obstructions or use by other people.
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