Private Rights of Way

Jon Maynard Boundaries Ltd, Boundary Demarcation and Disputes, Rights of Way, Expert Witness, Chartered Land Surveyor

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Private Rights of Way

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Private Right of Way
Private right of way on foot
Vehicular private right of way
Repairing a private right of way
Varying and extinguishing a private right of way
Excessive user of a private right of way
Disputes over rights of way

 

Private Right of Way

See also What is an Easement?

Ideally, the owners of both the dominant and servient tenements should know exactly:

  • where the right of way runs from and to;
  • exactly what route the right of way follows between those two points;
  • whether there are any width, weight or height restrictions on the traffic that uses the right of way;
  • whether the traffic permitted to use the right of way includes motor vehicles, motor cycles, or is restricted to passage on foot;
  • whether there are time restrictions in force, either as to time of day or day of the year, on which the right of way may be used;
  • who is responsible for the maintenance of the right of way.

Rarely are all, or even a fair proportion, of these things stated in the Deed of Grant or in the clause of the conveyance by which the righht of way is expressly granted.

Generally:

  • you may pass and repass along a right of way as long as you do not stop and linger on the right of way;
  • if the right of way is obstructed then you may divert along another route provided that the diversion remains on land belonging to the servient tenement (otherwise you would be trespassing on a third party's land);
  • a gate is not considered as an obstruction of the right of way, provided that the users of the dominant tenement have the means of opening and/or unlocking the gate;
  • the owner of the dominant tenement cannot expect the route to be widened, strengthened or given extra headroom just because his needs have changed: he is entitled only to the width, weight or headroom that was envisaged at the time of grant of the right of way.

A private right of way on foot permits you to:

  • pass and repass on foot between the dominant tenement and the public highway;
  • with or without a load that one person might be expected to be capable of carrying;
  • or pushing a small barrow or trolley or perambulator, or wheeling (not riding) a bicycle, provided that the wheeled device is not too wide to be accommodated by the footpath and by any gates along the path.

A vehicular private right of way permits you to:

  • drive vehicles of up to a permitted width, height and weight along the carriageway between the public highway and the dominant tenement;
  • stop a vehicle on the right of way immediately adjacent to the dominant tenement for the purpose of loading and unloading that vehicle provided that there is not an adequate loading or parking area on the dominant land;
  • perform other reasonable acts, such as pulling off the carriageway onto the verge in order to pass oncoming vehicles.

A vehicular right of way is not a right of parking.

If the width, height and weight limits of the right of way are not explicitly stated in the deed of grant then the courts will decide that these limits were set by naturally occurring restrictions that were in place at the time of the grant, such as the width of a gate at the entrance to the carriageway.

It is quite common to find a carriageway that is much narrower than the defined width of the right of way, for example a 10 feet wide carriageway within a 40 feet wide right of way, with 15 feet wide verges on either side of the carriageway. In these circumstances it is perfectly acceptable to pull onto the verge in order to avoid a collision with oncoming traffic, but it is not acceptable to drive along the verge just because it falls within the stated width of the right of way.

 

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Repairing a private right of way

If the right of way falls into disrepair, and if no-one can be identified as the party responsible for maintenance and if the owner of the servient tenement does not repair it, then the owner of the dominant tenement (who is inconvenienced by the poor condition of the way) may repair the way but must be careful not to improve the way (for it is not his land to develop). Thus a gravel drive may be re-graveled by the owner of the dominant tenement but he must not improve it by concreting or tarmaccing the surface.

Sometimes the owners of properties served by the same private road will form a club, often referred to as a road fund committee, charged with looking after the maintenance of the private right of way. They can do this if each property served by the road includes the portion of road (even if only up to the centre line) that fronts it. The costs of carriageway repair are met from funds raised through membership subscriptions. If the road fund committee decides to improve, rather than simply repair, the carriageway then each owner, being the servient owner of the road that fronts his property, is deemed to have given his permission for improvement of the road.

Varying and extinguishing a private right of way

The owner of the servient tenement is entitled to develop his own land, and this can come into conflict with his neighbour's overriding interest, ie. the right of way.

It may be possible, bearing in mind the configuration of the land in the servient tenement, to redefine the right of way along a new route. This has to be negotiated with the owner(s) of the dominant tenement(s) before a Deed of Variation can be drawn up by a solicitor.

It may be desirable for a right of way to be extinguished altogether. Again, this has to involve negotiation with owner(s) of the dominant tenement(s). It is usual in these circumstances for the owner of the servient tenement to pay all of the costs associated with obtaining a replacement right of way (over a third party's land) for the dominant tenement(s). A deed of Extinguishment is needed to formalise the extinguishment.

Excessive user

Owners of servient tenements are sometimes aggrieved when there is a dramatic increase in the traffic using the right of way across their land. They may take Court action pleading excessive user, ie. that a higher level of use than permitted has taken place. Such action is almost certainly doomed to failure because, whilst other limits may be in place on the right of way, there is usually no limit on the number of times in a given period that the dominant tenement may use the right of way.

 

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Inherited right of way      
There are two entirely different situations to describe under this heading.
Situation 1 concerns two fields, 'A' and 'B' that are contiguous with each other.

A right of way over South Lane was granted to benefit the land in field 'A' at a time when field 'A' was owned by Mr Smith. Completely separately, a right of way over North Lane was granted to benefit the land in field 'B' at a time when field 'B' was owned by Mr Jones.

Mr Jones (or strictly speaking, field 'B') does not enjoy a right of way over South Lane and Mr Smith (or strictly speaking, field 'A') does not enjoy a right of way over North Lane.

At a later date, Mr Smith purchased field 'B', which is contiguous with field 'A'. Mr Smith now owns all of the land connecting the end of North Lane with the end of South Lane. However, Mr Smith is not, by law, allowed to use South Lane as a means of access to field 'B', nor is he allowed to use North Lane as a means of access to field 'A'.

The right of way over South Lane is enjoyed only by the land that was identified in the Deed of Grant as the dominant tenement, ie by field 'A'. Field 'B' is not a dominant tenement relative to South Lane, and so South Lane may not be used as a means of access to field 'B'. Similarly, field 'A' is not a dominant tenement in relation to North Lane.


Situation 2 concerns a right of way benefiting a large plot of land whose owner wants to subdivide that plot. It should be remembered that the right of way benefits all of the land in the dominant tenement. If the land is subdivided then each and every small plot derived from the original dominant tenement inherits the right of way and may use it for the same purposes as the original grant allowed.
Example 1: the land comprises a house in a one acre plot and the owner wishes to build one or more houses in the back garden and sell them. If the existing right of way (and remember that it benefits all of the land in the one acre plot) permits passage "for residential purposes only" then the new houses may also exercise the right of way along West Lane.
Example 2: a farmer decides to sell off a small piece of land, accessible along a private right of way "for agricultural purposes only", so that some houses may be built on it. The houses must represent a change of land use to residential, which is not covered by the existing right of way. The farmer would have to renegotiate the right of way with the servient owner, obtaining a Deed of Variation to enable use of the right of way for residential purposes before the new houses could be built.
In other words, if a parcel of land that benefits from a right of way is sub-divided into smaller parcels then each of the smaller parcels inherits and also benefits from that right of way. Matters are rarely this simple: there is the matter of gaining planning consent for developing each of the smaller parcels of land, as well as the matter of gaining approval for the increased traffic flow along roads that may or may not be suitable for the increased traffic.

 

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Disputes concerning a private right of way can occur:

  • when someone, not necessarily the servient owner, blocks or restricts the right of way.
  • when trying to decide who pays for the maintenance of the right of way (repairing the road surface, or clearing vegetation from the pathway).
  • when the servient owner wishes to change the route of the right of way.
  • when the owner of the dominant tenement claims to have rights in excess of those granted to him.
  • when the servient owner plans development within the right of way or butting up against the right of way.
  • when the servient owner requires to make his property secure by means of locked gates placed across the right of way.

What you should do.

The first thing to do is to check your title certificate and/or conveyance deeds to confirm that there is an easement and to check the terms of your right of way. With luck (but this is not always the case) there will be an accurate description of the extent, shape and form of the right of way, and a statement of who is responsible for its maintenance.

Next, consider whether your rights are being infringed and the amount of inconvenience you are suffering. Try talking to your neighbour to find out what his point of view is and then see if you can negotiate a settlement that accommodates both your needs.

If this fails, or if your neighbour is unapproachable in the first instance, and you need professional help, then consider what your needs are before seeking the appropriate professional help:

  • If you need someone to tell you where and how wide the right of way is, you need a chartered land surveyor;
  • If you need someone to interpret the legal terms of the grant of easement you need a solicitor.

In either case, make sure you approach one who specialises in rights of way.

 

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