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A private right of way is a type of ‘easement’, which is the right of a landowner to use part of another person’s property in a particular way.
How is a private right of way created?
In most cases, easements for rights of way arise in one of three ways:
- The most common type of easement is an Express grant created by a deed. This usually happens when a person sells part of their land but wishes to retain certain rights over the portion sold. The deed must expressly record the grant.
- An Implied grant is similar to an express grant, but the law implies its existence. In other words, you will not find anything recorded in the deeds. This situation sometimes arises when someone acquires land, but the only means of access is over land retained by the seller. The buyer must prove the rights exist.
- Prescription describes an easement acquired through long use. It arises if a person can demonstrate that one landowner has used another person’s land without force, secrecy or permission, continuously and without interruption for at least 20 years.
Can a right of way be removed or lost?
Once created, losing a private right of way is very difficult. Typically, losing a right of way happens in one of three ways:
- The parties involved expressly agree to extinguish the right by entering into a formal deed of release.
- The person with the benefit of the right demonstrates by their actions that they intend to abandon it.
- Similar to abandonment, a legal principle known as ‘estoppel’ may terminate a right of way. Estoppel happens if the person over whose land the right is exercised has relied upon the other person’s conduct, indicating their intention to give it up.
But the courts have repeatedly held that a mere failure to exercise a right of way is not in itself enough to lose it. After all, why would a landowner give up rights over another person’s land? Particularly when those rights benefit their own land when there is no advantage to them in doing so. Indeed, in the case of Benn v Hardinge [1992], the court held there was no presumption of abandonment, although the right of way went unused for 175 years!
In a more recent case, the Court of Appeal in Dwyer v City of Westminster [2014] held that the non-use of a blocked and inaccessible passageway for 40 years did not constitute abandonment.
What can I do about an unused right of way?
You may believe that no one has exercised a right of way over your land for a long time. Alternatively, you may think you have the right of way over someone else’s land. In either case, you should exercise great caution before taking any action.
It would be easy to find yourself embroiled in a costly dispute you may lose. Also, a dispute can affect both properties’ saleability. Accordingly, you should always seek legal advice first to ensure you understand the strength – or weakness – of your position.