Right of way disputes are more common than you might think for both private individuals and companies. They usually occur when an individual or a company has assumed that the land they were using for access was either within their boundary or was publicly rather than privately owned land. When they have been using this as a right of way for some time it can cause multiple problems when the owner of the land re-asserts his rights.
This could make it difficult, if not impossible, for you to keep the access you need to your property or business. In the case of a business, this may seriously impede your ability to continue servicing your customers and could necessitate you moving to other premises. The impact on your business could be significant.
On the flip side, you may find that someone using your land as a right of way may negatively affect your property or business.
Whether you are using or own the land, it is important that some agreement is reached before either of you is negatively impacted. In this brief article, you will find out what an easement is, how it can be used to establish a right of way and how to avoid the associated legal headaches escalating further. It covers:
- Five Takeaway Points
- Right of Way Disputes: Resolution Case Study
- What Happened?
- What is an Easement?
- Why Else?
Five Takeaway Points
The key points in the case study discussed below are:
- You should seek to maintain friendly relations with your private or commercial neighbours to avoid costly legal actions
- It is important that you know the boundaries of your property and the right of way to it, rather than assuming that what has been done and used in the past is legally acceptable.
- If you find that you do not have a right of way or have infringed on another’s land, it is better to take legal advice rather than ignoring the problem.
- If someone is using your land and has no right to it then it is best to take legal advice rather than blocking their access without proper consideration.
- Even if you feel aggrieved, it always best to seek legal advice first rather than taking hasty action.
Right of Way Disputes: Resolution Case Study
Our client owned premises that were used as a car workshop and second hand car dealership. His premises were at the end of a row of shops in Birmingham and the rear was accessible by a private road. Cars for repair had to be delivered and collected down the shared private road. The entrance to the workshop at the rear was about 5 feet off the ground and an asphalt ramp had been constructed to allow cars to reach it. The ramp ended in the car park of their neighbour.
Our client rented out the premises to tenants and when his most recent tenants vacated the premises, the neighbour erected a fence in front of the ramp which prevented access to the workshop.
The ramp which accessed our client’s workshop exited onto their neighbour’s car park. It was evident from the property deeds that a right of way existed over the private road to our client’s land. However, the construction of the ramp (built after the initial registration of the land) resulted in a situation where the required right of way now fell on their neighbour’s car park rather than on the private road.
The neighbour did not have an issue with the usage of the ramp until our client’s most recent tenant caused problems by unlawfully parking in the neighbour’s car park. This meant that the neighbour’s customers and staff often could not find a space within their own car park.
Rather than talk to our client about the problem, the neighbour simply waited until the difficult tenant vacated the land, at which point they erected a fence around their boundary, completely blocking access to the ramp. This blocked the only access our client had for vehicles.
Our client was looking for a new tenant and noticed the fence when they arrived to check the state of the land. Their initial thought was to simply tear the fence down. If they had done so, they could have been liable to criminal proceedings and significant damages. Thankfully, they decided to contact Else, ask for specialist advice and Andy was able to prove that an easement had been created which allowed them a right of way.
What is an Easement?
An easement is a right to cross or otherwise use someone else’s land for a specified purpose. In short, it allows another to use and/or enter into the property of another without possessing it, e.g. a landowner may enjoy the right of way over the land of another to access their property.
An easement may be created in a number of ways by:
- An express grant– this is where a Deed of Grant is agreed between the two parties and states the terms of the easement.
- 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.
- Prescription– This happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the landowner’s permission for a period of at least twenty years.
In this case, as the workshop could be accessed on foot from the front there was no easement by necessity and a Deed of Grant would involve negotiation and a potentially high cost to our client.
As our client and/or his tenants had been using the ramp for approximately 20 years, Andy was able to show that an easement by prescription could be obtained. However, as our client had had a number of tenants over the 20 year period, we had to contact each of them and prove that they had repeatedly and openly used this right of way over that period without consent of the neighbour.
Else Solicitors always seek to ensure, where possible, that both parties are happy with the arrangement to avoid future ill-feelings and problems.
In this instance and as a result of threatening the neighbour with injunctive proceedings to compel the removal of the fence as well as an extensive claim for damages, the parties entered into commercial discussions. Those discussions resulted in an agreement whereby our client would obtain an express right of way over a sufficient area of the car park so as to allow access to the ramp by vehicles.
Our solution worked well for both parties. However, had the neighbour put a fence up just a year earlier, then our client might not have been able to claim an easement by prescription. This would have resulted in them either having to:
- Negotiate a Deed of Grant with the neighbour for a considerable premium (if the owner was happy to discuss this with with them) OR
- They would have had to demolish part of their workshop so as to relocate the ramp back onto their own land.
Either scenario would have cost our client tens of thousands of pounds.
Andy Rudkin commented:
“It is important that you know and respect the boundaries of your property and your rights of way. Many individuals and businesses think that because something has been used for numerous years then they automatically have the right to continue using it. Homeowners, business owners, tenants and circumstances do change and you may find that access or usage that you relied on is no longer available. It is always best to take legal advice and look for solutions before you get into difficulties. We also recommend that you look to maintain friendly relationships with your neighbours while ensuring that you have the legal rights you and your business need going forward.”
Else Solicitors is very experienced in settling right of way and property disputes.
You will discover that we are different from other legal firms. We will settle your dispute and look at other ways that we can add value to your company. This could include introducing you to new customers or suppliers in our extensive network or offering you some new insight into your market or your business.
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 firstname.lastname@example.org.