Know your Rights (of Way)

If you have a question or concern over a right of way on your property, it is important to seek specialist expert advice as soon as possible.

Right of way disputes are surprisingly common and at Osbornes we have specialists who can assist.

Use of Right of Way

It will first be imperative to determine whether you are still able to use your right of way and if so, whether it is still being used as far as possible? We will require details on how it is being used and how often.

This is important because case law suggests that a right of way even if specifically granted may be considered to have lapsed if no action had been taken.

The case referred to above involved a neighbour, one of whom had been granted an easement in 1980 permitting access to a pathway that ran along a strip of land owned by the other. The easement replaced an earlier right of way which had been expressly granted. By 1999, the strip of land was being used for car parking and the owner had removed most of the pathway and resurfaced the area. The other neighbour did not object to the works. Later both properties were sold and the new owners of the land which had the benefit of the easement sought an injunction to have their access reinstated and to prevent car parking. This argument was unsuccessful because the previous owner of the property had done nothing to prevent the owner of the land in question from breaching the terms of the easement over a long period of time. As a result, the easement, although contained in the deeds to the property, was no longer enforceable. The case was won on the argument that the neighbour who had benefited from the easement had stood by and allowed the landowner to prevent them from exercising their right of easement and were therefore, (under the legal principle of estoppel) estopped from relying on the right. It would be unfair for a later owner to rely on a right which their predecessor in title failed to enforce because the landowner had been induced by that conduct that the right would not be enforced.

Remedies

If the right of way has not been lost and it is considered that there has been an interference of the right of way, potential remedies include:

• Declarations

Often all a claimant needs is a declaration by the Court confirming the existence and defining the extent of the right of way. Although damages may also be sought arising from the interference, a claimant needs certainty so that it is confident in its future use of the easement. Declarations are a discretionary remedy and are viewed by the courts as a useful way of confirming the rights and duties of the respective parties (often without the need for penalising a transgressing party by way of an injunction or damages).

• Injunctions

Injunctions are equitable remedies which may be awarded at the discretion of the Court. An injunction is only binding on the parties to the proceedings and not on their successors in title, but breaching an injunction is a contempt of court. However, an injunction will not be granted if damages would be an adequate remedy.

It is possible that if there has been a delay in acting, the Court may assess the delay as being a bar to an injunction being granted. However, delay alone, is not enough to prevent a claimant obtaining an injunction. The consequence of the delay must be that it would be unfair for the court to grant an injunction, usually because the defendant has changed its position to its detriment because of the delay. We would need to look at the specific facts and circumstances of the case.

• Damages

Damages for nuisance are assessed to compensate the claimant for the loss actually suffered as a result of the defendant’s actions. If the claimant has suffered no loss the most the claimant can recover is nominal damages.

• Abatement

There are general and limited common law principles that a party is entitled to enter onto another’s land in order to put an end to an interference. This is known as abatement and would mean that a party  would then have the right to enter onto the land and remove the interference. However it is important that you take advice before taking such steps as this may simply escalate the situation.

If you believe you are in a similar situation and would like  specialist advice relating to a right of way and how you can protect your interests, please contact our Property Litigation department or call the team on 02074858811. Alternatively, you can make an online enquiry.