What is a disputed right of way and how can it arise?
A disputed right of way can arise at almost any time but usually following a property purchase where the buyer has cause to question the rights being used on its land or alternatively, in anticipation of a property sale, where the party in question wishes to formally register a right of way they have either acquired or believe was never properly registered to ensure such issues do not arise during the sale process.
Right of Way Law
Disputes over right of way can occur;
- When someone, not the owner, blocks or restricts the right of way
- When trying to decide who pays for the maintenance of the right of way
- When someone wishes to change the route of the right of way
- When someone claims additional rights
- When a development is planned within the right of way or against the right of way
How do you own a right of way?
Rights of way can arise in any number of circumstances;
- Express Right of Way – an express right of way may be granted by a deed. This deed will demonstrate who does and doesn’t benefit from a specific right of way. An express right of way must be detailed in writing with the full terms and conditions clearly stated and signed by the relevant parties. If unclear the court is likely to decide a dispute in favour of the person who wants to access the right of way.
- Implied Right of Way – The Law of Property Act 1925 confirms that, when a property is sold, the land will include the benefits of any existing rights of way.
- Prescription Right of Way – After continued use over a prolonged period of time a right of way used can become recognised and legitimate.
Matters relating to right of way law are rarely simple and it is essential to obtain good legal advice as early as possible.
How can a dispute occur?
Disputes can occur when one party prevents the other from using ‘shared’ rights of way, for example shared access for water, drainage, gas pipes and shared parking spaces. If you are unable to exercise your right of way or it is being physically obstructed the right of way law allows you to apply to the court for an injunction.
An injunction is designed to take immediate action to prevent a breach of their rights until the issues are resolved by the courts. Failing to comply with an injunction usually results in contempt of court proceedings, which can ultimately lead to a fine or imprisonment.
If an injunction is obtained it will specifically state what the other party must or must not do, until a court date is set to settle the dispute.
Do I need a solicitor to resolve a disputed right of way?
Yes. The issues are rarely simple and it is essential to obtain good legal advice as early as possible; sometimes doing nothing can be equally effective as taking action and it is important to understand which option to take.
Our expert team can guide you through the myriad of right of way, whether you hope to secure a right of way or protect yourself from a third party acquiring one.
Remember, an initial telephone call to one of our lawyers will cost you nothing. We are committed to discussing with our clients all funding options, further details of which are noted on our Civil Dispute Resolution homepage.