Rights of Way Disputes – What are my rights?

A right of way over land or an accessway can often become problematic when land in the vicinity of the right of way is developed. This can cause problems between neighbours or between long standing property owners and property developers.

Development of land can happen gradually over time when a right of way is also gradually increased. Often, the increased use of a right of way over time is not problematic but there will come a point where further development of an area of land, that is accessed over that right of way, then becomes objectionable by others who also have use of the right of way.

Another situation which often becomes problematic is where a property has been owned and occupied by one family for many years, but it is then bought by a developer and developed and changed into bigger and a more substantial property or divided into more than one dwelling. This then increases the number of people and intensity of use by people and potentially by more vehicles.

In either situation this can lead to disputes between those who own the land over which there is a right of way and developers or between developers and the neighbouring owner or between the new owner of a property who has bought it from a developer.

When Increased Use Becomes a Legal Dispute

The common complaint that we hear is that the greater use of an access way interferes with the original owner’s use of the right of way, either because there are more people using it or because there is an intensification of use by people or vehicles.

Whether the owner of the land has any legal recourse boils down to a fairly simple test. The legal test as to whether there has been an actionable excessive use of an easement or right of way is simple to state but in practice is more difficult to apply. The test is that the use complained of is so intensive as to amount to an unreasonable interference with the owner’s rights over the same parcel of land/access.

The answer in every case will be fact specific to the situation that existed before the development of the land and the increased use of the land by reason of the development. Necessarily, there will be subjectivity, as each person will experience the increased use or annoyance differently. What remains the same in every case is the need to thoroughly assess and exam what the use of the land was prior to development and after. There needs to be clear evidence of excessive use but also that this constitutes an actual interference with the landowners right to use their own land.

As with any form of dispute between property owners living in close proximity, parties can quickly take an entrenched position but anyone on the verge of this type of dispute needs to assess the evidence in favour of the original use and the new use which is being complained of and whether that would amount to a sustained level of actual interference.

Pedestrian or Vehicular Access

Rights of way often develop over time and as such are not always recorded in writing. Often rights of way are recorded in writing after they have been established and the intensification of the use of that right of way then also changes over time. Whether a right of way is by foot only or by vehicle is not always stated. Where such a right of way is not stated to be “by foot only” or a right of way by foot and vehicular access, the nature of the property, the size of the accessway and the use of the adjacent land over time will all be factors that affect whether the access is by foot and/or vehicular.

Clear evidence of use of the accessway for vehicles would need to be demonstrated and that this was not objected to by any neighbouring owner. The type of accessway is fact dependent, both on the facts before and after an objection is made. Any objection to and increased or change of use from foot to vehicle would need to be very clear and unambiguous.

The Impact of Increased Development

The Government has initiated a review of greater development of land to deal with the much commented upon housing crisis.  This housing crisis is affecting the rental market for properties but potentially issues about disputed easements and rights of way could also be on the rise with increased property building.

How Pinney Talfourd can help?

If you are facing challenges with rights of access or disputes involving easements, Pinney Talfourd’s Property Litigation team is here to help. Our experienced solicitors can provide tailored advice to protect your interests and resolve issues efficiently.

Contact the team on 01708 511 000 to discuss your situation further.