Right way, wrong way and my way! – What are Right’s of Way?

If you own a Property (residential or commercial) someone else (or possibly more than one person) might have a right of way over it.

If you are selling your property and it has a right of way over it, you need to tell your Conveyancing Solicitor.

If you’re buying a property, and it has a right of way over it, your conveyancing solicitor will be finding out all about it from the vendors, and will tell you what is involved and what it means for you, as part of the conveyancing process.

So what is a right of way?

Well put simply, it means that someone else has the right to access your property for a particular reason. So long as they comply with any obligations on them, you cannot stop them exercising their right of way, and if you tried to stop them, they could take you to court. That is why it’s important that we tell your purchaser about any rights of way, and you know about any rights of way affecting the property you want to buy.

Examples of a right of way are

1. That someone has the right to cross over your garden to get to their land. This might happen where, for example, a developer has bought a house with a large garden, and has built a new house in part of that garden. The owners of the original house will have granted a right of way to the owners of the new house, so that the new house owners can drive over the original house owners drive way, to get to their property.
2. If you are buying a property where there are common parts (such as a flat or an office in an estate) everyone in the building will have the right to cross over the pathways, stairways and corridors to get to and from their flat or office. In that situation, the rights of way will be set out in the lease so you know what parts you can access, and what parts you can’t.
3. Someone may have the right to use part of your land, such as the right to park on your driveway or put their bins out next to yours. This sometimes happens with large houses that have been converted into flats.

Rights of way come into existence in a number of ways

The most common way is by formal agreement.  So, for example, when a property developer buys a plot of land to build some houses, as part of a private gated estate, he will put into the paperwork a right of way that gives all the people who buy the houses the right to drive and walk backwards and forwards over the road to get to and from their houses.  This will be set out in the plans, which we will find at the land registry, so when the solicitor first starts investigating your rights and obligations, your conveyancing solicitor will see this.  In fact, they will go looking for things like this, as we want to make sure that you and your guests have the right to get in and out of the property.

Some rights of way come into effect by informal agreement.  This is often a deal done between neighbours (often just on a nod, without even a discussion) but if it has been going on for long enough, it can become binding.  So, for example, it used to be quite common for rows of terraced and town houses to be built, with an access way at the rear so that people can reach their gardens from the road, without having to go through their house.  Sometimes people would elect to adopt the rear pathway into their garden (to make it bigger) and would then agree with their neighbours that if they needed to get their lawnmowers in and out, they could just go over each other’s gardens.  Whilst this is absolutely fine and you are perfectly entitled to do this (unless the lease plan says that the access way belongs to someone else), you may have created a legally binding right of way, which needs to be made known to anyone planning to buy the property.  Your purchaser may not want to allow someone to cross their lawn every Sunday morning, but if you’ve allowed a right of way to come into existence, they may not have a choice.

Sometimes a right of way can come into existence without any agreement being reached, particularly if someone is doing something you don’t know about.  Let’s say, for example, that you own a rental property, and unbeknown to you, your tenant has allowed your neighbour to use your garden.  The tenant didn’t want to have to be bothered to mow the lawn, so the neighbour said he’d do it, in return for being able to take down the dividing fence, and using both gardens as his own.  Your tenant doesn’t have the right to grant a right of way, but if the neighbour has being using your garden for long enough (probably in excess of 10 years but it will depend on the facts) and has been doing it openly (eg your tenant and everyone around can see him using the garden) then he could argue that he has acquired ownership of your garden or at the very least and ongoing right to use it.  It would be a difficult case for him to bring, but not impossible, so if you do have tenants, make sure that the property is inspected regularly and that someone is keeping an eye on what is actually going on. Obviously this is quite an extreme example, but it does illustrate how it could happen without you knowing about it. Even if you knew the neighbour was using your garden, you might assume that it’s an arrangement you can just bring to an end any time you like, but if it’s been going on for a long time this may not be the case.

If you do think you may have granted a right of way over your land, tell your conveyancing solicitor before you start the sale process so they can help you get to the bottom of it.

If you are buying a property and you think someone else has a right of way over it, let your conveyancing solicitor know as soon as you can and they will investigate further.  If there is a right of way that the vendor failed to disclose to you, then your conveyancer will guide you through the options to remedy it.

Disclaimer – our articles are designed to give you guidance and information. There is no substitute for direct advice, particularly as everyone’s circumstances are different. It is important you source the advice of a solicitor experienced in dealing with such matters.