Right of Way Solicitors

What is a Right of Way Easement?

A Right of Way Easement is a legal right that allows an individual or organisation to pass through land owned by another person. This right is often granted to allow access to a public road, pathway, neighbouring property, or business premises.

Right of Way Easements fall into two main categories:

• A public right of way, which allows members of the public to use certain paths or roads
• A private right of way, which permits specific individuals or organisations access across private land

How are Right of Way Easements created?

A right of way easement can arise in several ways:

• By express grant: The easement is set out in a legal document, typically within a transfer deed, lease, or separate deed of grant
• By prescription: This occurs where someone has used the land openly, continuously, and without permission for a minimum period of twenty years. For example, if a neighbour has regularly crossed a portion of your land for decades to access their bins or garden, they may acquire a legal right
• By necessity: In some situations, where there is no other practical access to a property or public road, the courts may infer the existence of a right of way

These issues can be legally and factually complex, and professional advice should be sought at an early stage. We can assist in confirming whether an easement exists, defining its scope, and determining how best to protect or challenge it.

Common Right of Way Easement disputes

Disputes involving rights of way are not uncommon and can arise in both residential and commercial contexts. Common scenarios include:

• A property owner attempting to obstruct a right of way by installing a gate or barrier
• A developer seeking to reroute or extinguish multiple easements that affect a development site
• Disagreement over the level or frequency of use, particularly where a right intended for limited residential use is now being used for commercial access

A key first step is to establish whether the right of way still exists and whether it is being used as originally intended. We will need to understand how the right is exercised and how frequently.

Where interference with a right of way has occurred, the law provides various remedies:

Declarations

A declaration from the court may confirm the existence and precise extent of the easement. This remedy gives clarity and certainty to both parties, ensuring confidence in the ongoing use of the easement. While the court may also award financial damages, a declaration is often sufficient to resolve the issue and avoid the need for further legal action.

Injunctions

An injunction may be necessary where there is active interference with the right of way. This could include unauthorised construction over the access route or permanent obstruction. An injunction can halt the works immediately, which may cause significant cost and disruption to the person interfering with the easement.

Injunctions are discretionary remedies and are only granted where the court considers them appropriate. They bind only the parties involved in the legal proceedings. However, breaching an injunction is a serious matter and may amount to contempt of court. In some cases, delay in taking action may result in an injunction being refused, but this depends on whether the delay has caused unfairness or prejudice.

Damages

Damages may be awarded where the claimant can show financial loss caused by the interference with the right of way. If no substantial loss can be demonstrated, the court may still award nominal damages to recognise the legal infringement.

Abatement

Under limited circumstances, a person may have a common law right to enter another’s land to remove the obstruction themselves. This is known as abatement. However, exercising this right carries risks and can lead to escalation. Legal advice should always be taken before taking such steps.

How to deal with a neighbour misusing a right of way

If a neighbour is misusing a right of way, causing nuisance, or exceeding what was originally intended, it is essential to take legal advice. Unlawful use could include unauthorised vehicles using a footpath, or multiple commercial users relying on a right intended for domestic access.

Disputes often require careful negotiation. This should be approached with the assistance of a solicitor who can advise on the correct legal position and guide the parties towards an acceptable outcome. Any agreement reached should be documented and registered with HM Land Registry to prevent future disputes.

Where informal resolution is not possible, legal action may be necessary. Our property litigation team can represent you through court proceedings where required.

Right of Way Case Law

Case law highlights the importance of maintaining and enforcing rights of way over time. For example, in one case, a neighbour had an express easement recorded in the property deeds, granting them access along a strip of land. Over time, the land was repurposed for car parking and the original path removed. The neighbour made no objection for many years.

When new owners later sought to enforce the right, the court found that the easement was no longer enforceable. The previous owner’s failure to act had led the landowner to believe that the right would not be relied upon. The legal doctrine of estoppel prevented the new owners from asserting the right.

This case demonstrates that rights of way, even those expressly granted, can be lost if not actively exercised or defended.

Expert legal advice on rights of way

Our specialist property litigation solicitors have over forty years of experience in handling complex rights of way disputes for residential and commercial clients. We advise homeowners, property developers, landlords, investors, and business owners on all aspects of easements and access rights.

An easement is a right to use another person’s land for a specific purpose. It may be written into the property’s legal title, or acquired over time through regular, long-term use. Many owners are unaware that their land is subject to an easement until it becomes a source of conflict, such as when a neighbour begins parking on a driveway or members of the public use a pathway across private grounds.

We provide clear and practical advice across a wide range of issues, including:

• Establishing whether an easement exists
• Interpreting and defining the terms of a right of way
• Bringing or defending claims for interference or excessive use
• Applying for injunctions or declarations from the court
• Negotiating changes to the route of a right of way
• Removing obsolete or unused easements
• Seeking damages for loss caused by unauthorised use
• Registering easement changes with HM Land Registry

If you are unsure about your rights, or if someone is using your land without your permission, we can help. Our team has the expertise to resolve disputes efficiently and protect your long-term interests, whether through negotiation, litigation, or formal documentation.

Please contact us for a confidential discussion about your rights and how we can assist.