Right of Way Easement

What is a Right of Way Easement?

A Right of Way Easement is a type of easement that grants the holder the right to pass through a property owned by someone else. This right is typically established to provide access over a piece of land to reach another location, such as a road, public path, or another property. Right of Way Easements can be either a:

• Public right of way that gives the public access to footpaths or roads
• Private right of way that gives specific people or organisations the right to access a private property or business premises

How are Right of Way Easements created?

An easement can be created by:

• Express grant, which means it will be written down in a legal document
• Prescription, which means someone has exercised the right continuously for a period of at least 20 years. For example, if a neighbour has been crossing over your garden to put their bins out every week for 20 years, the right of way may become legitimate by virtue of their long use
• Necessity, for example, the courts will usually infer that a right of way exists if there is no other way for a property owner to reach a public highway. 

These matters are rarely simple and it is advisable to seek legal advice at the earliest opportunity. We can help you figure out the scope of the easement and find a solution that works for you.

What is a Right of Way Easement dispute?

Disputes regularly arise over easements and clients come to us with all sorts of problems. For example, a homeowner may wish to put a gate across the right of way, which is often possible as long as a key is provided. Developers may encounter complex challenges with multiple easements that need diverting in order to allow construction. 

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.

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

The worst kind of problem faced is the risk of an injunction. This typically occurs when a property owner interferes with an easement, for example, by building over someone’s right of way without providing an alternative route or compensation. An injunction will bring the construction work to a halt which may end up costing a lot of money. 

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.

How do you stop a neighbour abusing right of way?

If you wish to restrict, stop a neighbour abusing their right of way or change an easement for any reason, then please speak to our expert team. It’s important to put the right legal provisions in place to make sure you do not expose yourself to court action.

The law on right of way easements is both extensive and complex. Often, we have to look back historically to see who has been using the land, why, and for how long. There may also be issues of excessive use to consider, such as when a driveway that was intended for access to a single family home is now being used by a new housing estate. 

The starting point is to negotiate with the other side to agree a course of action. This should only be attempted after taking specialist legal advice. Your solicitor will work with you to make sure that everyone has the correct legal rights, and the property owner is not unfairly restricted in what he can do with the property. 

If we can’t resolve the dispute amicably, then we will fight your case in court. We also ensure that any agreement is registered with HM Land Registry to protect your rights for the future.

Right of Way Case Law

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.

In this case, a neighbour was granted an easement in 1980, allowing access to a pathway running along a strip of land owned by another neighbour. This easement replaced an earlier right of way that 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 neighbour with the easement did not object to these changes. Later, both properties were sold. The new owners of the property benefiting from the easement sought an injunction to reinstate their access and to prevent car parking on the strip of land.

Their argument was unsuccessful because the previous owner of their property had not taken any action to prevent the landowner from breaching the easement terms over a long period. Consequently, the easement, despite being recorded in the property deeds, was no longer enforceable. The case was decided on the grounds that the neighbour who had benefited from the easement had allowed the landowner to prevent them from exercising their right. Therefore, under the legal principle of estoppel, they were estopped from relying on the right.

It was deemed unfair for a new owner to rely on a right which the previous owner had failed to enforce, as the landowner had been led to believe, by the predecessor’s inaction, that the right would not be enforced.

Expert right of way services

The property litigation lawyers at Osbornes has four decades of experience advising on complex rights of way and access disputes for residential and commercial property. We help homeowners, property investors, property developers, and private and public companies of all sizes resolve right of way disputes swiftly, with practical solutions that achieve your goals. 

An easement is right to enter or use someone else’s property for a specific purpose. The right can be written down in your property deeds, or it can be acquired over decades simply by someone exercising the right on a regular basis. Sometimes, a business or individual will not even realise that their property is subject to an easement until they see a steady stream of hikers walking across their land, or a neighbour parking a vehicle on their driveway. 

We provide sound advice for a wide range of right of way easement disputes, including:

• Investigating whether an easement exists
• Advising on the conditions attached to an easement
• Injunctions to stop someone interfering with an easement
• Legal action to stop someone using an easement excessively
• Compelling someone to repair and maintain a right of way
• Extinguishing easements
• Changing the route of rights of way

If you feel that someone is using your land unlawfully, or your neighbours are not allowing you to exercise an easement over their land, we can help. Our property litigation experts are specialists in this area. We can help you resolve your dispute efficiently, and where relevant seek compensation for any loss you have incurred as a result of someone interfering with your rights.

Why choose Osbornes to resolve your right of way dispute?

Osbornes has a highly successful property litigation department and our in-house experts can act quickly to protect your interests, guiding you through this complex area of law in plain English. We are:

• Regulated and monitored by the Solicitors Regulation Authority
• Members of the Property Litigation Association demonstrating best practice and technical expertise in this area
• Rated one of The Times Best Law Firms
• Transparent on fees, providing clear cost advice from the outset.

For a free, no obligation discussion about our services, call us today on 020 7485 8811 or fill in an online form and we will call you back.