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Legal Update: Right of Way disputes

The following article is an update on right of way disputes.

  • Have you been using a right of way that you thought you had to cross land but the owner has now told you to stop?
  • Has someone been crossing or using your land without your permission? You may no longer want them to do this or you may want to use the land for another purpose.

If so, there is the potential for right of way disputes, please read on to find out your rights following a ruling in August 2017.

Right of way disputes are increasingly common between both private individuals and companies. Right of way disputes disputes usually occur when an individual or a company has assumed that the land they were crossing was either within their boundary or was publicly rather than privately owned.

The owner may act to stop their land being used either by legal request or by erecting a fence, putting up a gate etc.  This can cause significant trouble for the user. The user must then seek an easement to continue accessing or using the land.

An easement is a right to cross or otherwise use someone else's land for a specified purpose, e.g. someone needs to cross another’s land to get vehicles to and from their car workshop.

An easement may be created in several ways by:

  • Necessity- a plot of land has a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and that area.
  • An express grant- this is where a Deed of Grant is agreed between the two parties and states the terms of the easement.
  • Prescription- This occurs when someone has repeatedly and openly used the land without the landowner's permission for a period of at least twenty years.

If an easement by necessity cannot be granted and the owner will not agree to an express grant, then the user’s only option is to obtain one by prescription. The user must make a claim that the property has prescriptive rights.

An easement by prescription applies to the property so the prescriptive rights are passed on when it is sold.  This is significant as the conditions for prescriptive rights which you are now seeking could have been fulfilled in the past (e.g. 1980-2000).

There are two conditions that need to be satisfied for a right of way by prescription to be granted.  These are that the land was:

  1. Repeatedly and openly used over a 20-year period
  2. Used over this period without the landowner’s permission

The case between David, Diane and Adriane Welford and David and Elizabeth Graham went to appeal in August 2017.  The Welhams were claiming a right of way to and from their workshop over the Graham’s yard.

The Welfords acquired the workshop in 2012.  The Grahams acquired the adjacent yard in the same year.  The Welfords applied to register the right of way at HM Land Registry and the Grahams objected.

The Welfords took their case to Court and argued that previous owners of the workshop (those between 1978 and 2002, i.e. 24 years) had acquired the right of way by prescription.  They lost their case in 2016 as they could not prove that between 1988 and 2003 the then workshop owners had not been granted permission to use the yard.

This is the most interesting part of the Welford’s case- how do you prove a negative?  

The demand for claimants to do so arose from a case in 1903.  The claimant then was seeking to prove a right of way by prescription to use a yard to access to their property.  They proved sufficient use of the yard but the owner provided evidence that they had received regular payments from the user. The owner contented that this was rent or a license fee for the right of way, while the claimant stated that it was a perpetual payment attached to some original grant of the right of way.

The claimant lost their case. The resulting judgement contained several statements to the effect that the burden of proving that the use was without permission was on the party claiming the easement.  In this case, the claimant had to prove that their regular payment was not to secure their right of way.

However, what happens when there is no such payment?  How could the Welfords prove that permission had not been granted to previous owners?   They could not so they appealed their case.

Referring to the 1903 case, Mr Justice Morgan presiding said, “where the facts are open to two explanations, the burden is on the claimant to establish the explanation which is consistent with the use being as of right”.  He went on to remark that to demand that claimants prove they had not received permission over a 20-year period would make prescriptive claims almost impossible.

Therefore, he held that the evidential presumption on which the Welford’s based their case, i.e. the presumption that permission was not granted unless proved otherwise, made “very good practical sense and the absence of such an evidential presumption would make little sense”.

Mr Justice Morgan concluded that once a person claiming a right by prescription has established open and repeated use for upwards of 20 years, the defendant has the burden of providing evidence to show that the use was not “as of right” (with consent or by force).

The Welfords won their appeal and were granted an easement. The Impact

This decision will make it easier for parties to claim prescriptive rights.  You still need to provide evidence of open and repeated use but no longer need to prove that you did not have permission to use the land.

If you are defending such a claim, you must ensure that you can produce evidence to support the fact that the land was used with permission.

Andy Rudkin, Head of Dispute Resolution at Else Solicitors commented “This clarification is welcome news for those seeking prescriptive rights. We are happy to speak to any individual or company that needs help in obtaining or defending an easement by prescription.”

If you or your company would like some legal support with right of way or property disputes, then we invite you to contact Andy Rudkin, Head of Dispute Resolution at Else Solicitors on 01283 526239 or andy.rudkin@elselaw.co.uk.

We invite you to experience the Else difference today.