What legal rights do I have if someone is obstructing my right of way?

Numerous landowners in the UK enjoy a private 'right of way' (also referred to as an easement), granting them specific rights. This legal privilege allows them to traverse another person's land along a designated path, typically for a specific purpose, such as accessing their property from the public roadway.

What are easements and how are they made?

To qualify as an easement, there needs to be a piece of land that benefits from the right of way (known as the dominant land) and a distinct piece of land, owned by another party, upon which this right is exercised (referred to as the servient land). Additionally, the right must be grantable, meaning it should be a right that permits a positive action to be taken on the servient land.

An easement can be established in three distinct ways, which include:

Deed

The easement that offers the highest level of certainty is one established through a written deed. This deed may be included as part of a larger document involved in a land transfer through lease or sale, or it can exist as a standalone document. In either case, it should clearly outline the terms of the easement and be signed by all relevant parties.

If you have received an easement through a deed from either a leasehold or freehold estate, it will serve as a legal interest in the land, as long as you register it on the property title with the Land Registry. Until registration occurs, it will function as an equitable easement. Unlike a legal easement, which is binding on all purchasers regardless of their awareness, an equitable easement only binds a buyer who is aware of its existence.

It is not feasible to register an easement on unregistered land, although an equitable easement can be recorded as a land charge if established after 1925. However, if you possess an easement over unregistered land, you can file a caution against the first registration of the servient land. This ensures that if someone applies to register the land, the easement will be acknowledged at that point.

Prescription

If your right of way isn't specified in a deed, you may be able to obtain an easement through long-term usage, according to the doctrine of prescription. Under the Prescription Act of 1832, a prescriptive easement can be established if the servient land has been utilised in the same manner for over 20 years, without any secrecy, force, or permission from the owner of the servient land.

A prescriptive claim may be unsuccessful if the servient landowner granted you permission to use the land, whether verbally or in writing. Furthermore, a prescriptive easement cannot be established over leased land unless the right was exercised prior to the land being leased.

Implication

Easements can be established by implication under common law in three distinct ways:

1. Necessity – this situation may occur if your neighbour sold you a section of their land, and the only way to access your property is by traversing a portion of the land they retained.
2. The principle that if the dominant and servient lands were formerly owned by your neighbour, an easement will be presumed. You will have the right to continuous and apparent easements, as well as any easements necessary for the reasonable enjoyment of your property, which were utilised while the two properties were under common ownership.
3. Common Intention – If both parties can demonstrate their intent to establish an easement, one will be assumed.

What restrictions apply to rights of way?

There are often express or implied restrictions on how you can utilise the right of way, which are determined by the language in the deed or the historical usage of the route. For instance, the right of way may be confined to a specific area along a designated route, or it might be designated for pedestrian use only, excluding vehicles.

What actions can you take if someone obstructs your path?

Grasping the foundation of your right of way influences how you address a dispute. However, there are times when blocked rights of way occur unintentionally or due to misunderstandings. It’s possible that your neighbour is unaware that their actions are creating an issue. In some cases, they might not even recognise the existence of the right of way, and an informal discussion could help resolve the situation.

If your neighbour remains unyielding, you might have no choice but to seek a court injunction and potentially claim damages for any financial loss. However, if discussions and written communications have failed, we strongly advise considering mediation before pursuing legal action. Mediation often proves effective when informal methods do not yield results. In fact, nowadays, courts generally expect both parties to explore mediation options before initiating court proceedings.

How can Hegarty help?

If you're experiencing issues with your neighbour regarding the use of a right of way across their property, reach out to our team of specialists for professional legal guidance.

We can determine the legal standing and foundation of your right of way, assist in registering unregistered easements, and negotiate with your neighbour to find a mutually acceptable solution.

If your neighbour is uncooperative, we will pursue all legal avenues, including if necessary an injunction, that compels them to cease their interference with your rightful enjoyment of your property.