In this post we revisit private rights of way from the perspective of a development site – looking at how they are created, varied, and how they can be extinguished.
Q1: ‘I recently purchased a large estate. At the time of purchase, my lawyers reported that the area close to one boundary was subject to a right of way contained in a 19th century deed. There is no evidence that anyone has used it for a long time. I want to redevelop my land: can I build over the right of way?’
A1: No. The right of way still exists and you are not permitted to obstruct or interfere with it, unless the deed says you can. In one case, a right of way which had not been used in over 175 years was still technically in existence! Lack of use of a formal right of way is insufficient to show it has been abandoned. To be able to prove abandonment, the evidence has to be so overwhelming as to show that the person with the right of way has permanently given it up. Each case will be determined on its facts. For example:
(a) a vehicular right of way over a lane was abandoned when the beneficiary allowed the public use of the lane as a footpath. The lane was exceptionally narrow and it was established that there was not enough room for both vehicular and pedestrian use; but
(b) a right of way over a canal was not abandoned when the beneficiary sold off that part of the property which abutted the canal. It was decided that the benefit remained as the parcel of land could have been purchased again.
Q2: ‘Would it make a difference if the right of way had been acquired by use without a deed?’
A2: No. Once a right of way has been established by continuous use of twenty years it does not have to go on being used consistently. The rights obtained are the same as if the right was granted by deed and known as prescriptive rights.
Q3: ‘The owner of the adjoining property which has the benefit of this right of way is planning to redevelop his property which will increase the amount of traffic using the right of way. Can he do this?’
A3: Maybe. Again, we need to look to the deed as a whole or where there is no deed the circumstances in which the right was acquired by prescription. The context of the right is important.
Even if the deed does not limit the right of way – for example if it simply states it can be used ‘with or without carriages’ – then the amount of traffic using it may not be increased if there are other provisions in the deed that are inconsistent with this (e.g. a covenant limiting the use of the property for residential purposes).
In addition, if the rights were acquired by prescription, a change of use could result in the right being lost. For example, if the right was acquired to access a single residential property and that residential property is redeveloped for commercial purposes, it is unlikely that the right of way will be valid for the new use.
Property owners should monitor the exercise of any rights of way over their land; and those exercising a right of way need to be aware of the context in which the right arose and the limits on its use.
Finally, it should be remembered that rights can also be acquired by the public in general. The rules governing the acquisition of such rights are different and that is the subject of another blog.