The Rights - and Wrongs - of Way

Many readers of this 'blog will be familiar with the saying that "an Englishman's home is his castle".

The remark is commonly attributed to a ruling issued in 1604 by the notable 17th-century jurist Sir Edward Coke and means, in essence, that no-one is entitled to enter another person's home without permission.

So far, so positively Jacobean.

However, there are circumstances in which individuals do have access to someone's land under what is known as a right of way.

We may be familiar with the concept of public rights of way in relation to ramblers being entitled to use footpaths across farmland, for instance.

Rights of way also exist, though, in a purely residential context and allow someone to cross land which they themselves don't own under something called an easement.

Details of precisely what constitutes permitted access - how it's done, how often and for how long - are included in a property's title deeds.

Yet even though the matter seems relatively straightforward, it is still a regular source of friction.

In fact, according to research published by the home insurer Churchill last June, issues of access including rights of way are among the most common nuisances when it comes to neighbours (https://www.directlinegroup.co.uk/en/news/brand-news/2022/11-million-boundary-disputes-.html).

Overall, Churchill estimated that of the one-fifth of UK homeowners who claimed to have experienced a boundary dispute with someone living on an adjacent property, 13 per cent involved difficulties securing access.

As a case in which I've recently acted illustrates, such disputes are not trifling inconveniences but can have serious and costly consequences.

My client owned a terraced cottage, access to which was granted "with or without vehicles of all kinds at all times and for all purposes" over a driveway from the highway to the rear of the property concerned.

The driveway was part of land owned along with a convenience store adjacent to the cottage.

Despite the right of way only being granted in 2000, the owner claimed that it had fallen away and was no longer in force. The owner parked vehicles on the driveway and permitted deliveries to the convenience store which frequently blocked the driveway, meaning that my client's tenant was often unable to leave or enter without some very skilled driving.

Not only did the obstruction continue over a far longer period of time than the landowner suggested but it was argued that their conduct - including a failure to agree an undertaking not to park - showed that they weren't taking the matter seriously.

At trial, a permanent injunction was granted against the owner to stop them parking on the right of way and on the highway. It underlined how severely the conduct was viewed, given that a deliberate breach of an injunction can be regarded as contempt of court, something which carries the risk of imprisonment.

Even though the landowner had only retained legal representation relatively late on in the process, they had to pay their own costs and those of my clients - a sum amounting to almost £50,000.

Furthermore, the right of way at the heart of the case was reinforced.

Whilst these sorts of disagreements are not entirely uncommon, the case underlined the importance of knowing quite literally where you stand when it comes to rights of way.

Before you actually buy land with access of this sort, a conveyancing solicitor should inform you whether one exists.

If a dispute sadly does occur, you can't simply say that you didn't know that a right of way existed. That position would be interpreted as negligence.

It is far more effective to ask the question in advance as to whether there is a right of way and, if so, check what that access entails. A right of way is a legal right.

Is it, for instance, limited by foot or by vehicle? Is access also open-ended as in the "at all times and for all purposes" reference of my recent case?

Once you have established the extent to which access is permitted, you should make sure that you're not doing anything either deliberately or inadvertently to interfere with it.

An obstruction of a right of way is not actionable unless it is substantial. The question is whether practically and substantially the right of way can be used as conveniently as before.

Clearly not, if a car is parked across it and this includes parking a car on the public highway in a position opposite the point where a private right of way joins the highway.

If problems still arise, then you need to determine the full extent of any obstruction as swiftly as you can, if indeed you are acting in breach of the right of way.

Knowing your rights and those of others can mean that the potential for trouble is avoided from the very start, thus ensuring that neighbourly tensions aren't inflamed and you're not left significantly out of pocket either.