When someone is deemed to have the right to enter or cross someone else’s land for a specific purpose this is known as the right to access a property or an easement. In this article, a discussion will be had about what the specific laws surrounding this are and under what context it is legal for someone to enter a property with a right of access.
So, from who can enter your property to the legal documents needed to do so, read on to find out about the right of access to a property.
What exactly is a right of way to a property?
Private right of way is what allows a person to enter or re-enter by walking or using a vehicle into land that is owned by someone who isn’t themself legally. This private right of way has to be granted by the land registry or through a prescription.
A right of way can only be established if it is explicitly acknowledged in a Deed of Grant, satisfies the requirements of necessity, or has been utilised secretly, forcibly, or with consent for more than 20 years.
If your right of way is impeded, you are allowed to use a different route as long as you don’t trespass on anyone else’s property. If you consider that your right of way has been unfairly impeded, you may file a lawsuit against the offender if the interference is severe.
Unauthorised entry to your property may be construed as a trespassing offence as well as a right of way issue.
How to get a right of way
If the public can convince the land registry that there is a certain route on a landowners land that has been used in the past for any kind of historic route, this is a good reason for applying to a right of way.
There are a few steps you have to follow once you have this evidence.
This comprises of:
- Show evidence that the public has been using the route you want to get a right of way for for at least 20 years
- Show evidence that the use of this route is for the widespread public not just those who live nearby or on the landowner’s land
- The route must start outside of the land and end outside of the land and only pass through
To prove this, members of the public will have to bring evidence such as old maps of enclosure awards and bring them to submit to the land registry. If you are not sure about this process, read the Right of Way Review Committee’s guidance here. You may also be able to find local information that helps you out with your local authority by joining a landlord association.
What should you do if a private right of way is blocked
If a right of way is blocked, it is advised to use another route if it is available. However, you have to be careful you don’t enter someone else’s land in the process and it is part of your landlord responsibilities to respect this. However, if this continues for a long period of time and you have verbally told your neighbour about this right of way being obstructed, then you may be able to take legal action against your neighbour.
In order to do this go to a small claims court and begin compiling evidence of your neighbour’s noncompliance with an easement or right of way document.
What exactly is a substantial interference?
If legal action is needed to be taken to maintain a right of way easement, this is known as substantial interference. The dispute becomes “substantial” when action is taken against the easement holder and the person who owns the land starts a legal process.
What are the rights under the Access to Neighbouring Land Act 1992?
In 1992, this law was introduced in order for people to have better relationships with their neighbours. It states that a landlord can enter a neighbouring property in order to maintain their own property.
For example, if two buildings were being redeveloped and there was a wall that is shared between the two properties, it would be within both of the property owner’s rights to put scaffolding on an area that is not on their land in order to complete the work on the wall.
There still needs to be a court process involved if there is a dispute around this however. In a case like this, the proposed work of the landlord will have to be considered if they are necessary to preserve the property. As well as this, the necessity for this redevelopment has to be compared against the hardship involved for other property owners.
This prevents arguments between neighbours as there is a specific process that has to be followed before any legal action can occur.
Does a right of way easement give access to a back garden?
This depends on the easement in question but yes, it is entirely likely that this is the case, This is in fact on of the more common types of easement as outdoor space is hard to manage, especially after other houses have been built around land and in cases where there are different sized plots of land clustered together in an irregular manner.
What is the difference between a right of way and right of access?
The key difference between the two is a right of way easement is typically concerning neighbours. For instance, a neighbour could have the right of way to a property that is owned by someone else.
A right of access usually applies to the public as this is where anyone can enter the land that is owned privately. This can be due to a public footpath or a historic route that has to be preserved due to the laws around having a deed of grant.
Does a right of way expire if not used?
Usually, a right of access will continue to function forever unless the land that is used by the neighbour who holds the easement and is able to enter the land when they want is owned by the same person.
For instance, if a neighbour buys the land that is next to them, the right of way would then expire because the landowner would then own the right of way and it is impossible for a right of way to apply to the same person.
What are the different right of way easements?
There are six different types of easements that can be granted in order to let someone onto privately owned land legally.
Express easements
An Express easement or an express right of way is where it has been written down in a formal document that someone has the right of way to someone else’s land. This formal document must include specific terms that are abided by at all times by both parties. The person who owns the land and the person who is entering the land has to sign this agreement before the express easement is valid.
An express easement can also continue on to future owners of a property. For example, if there is an Express easement in place and the property was sold to a new owner, the owner will have to accept that someone sometimes uses the land and has the right of way to it.
Implied easements
Implied easements are those that are not written officially in a legal document. This means they are implied to be used where necessary but there are no legal ramifications that occur if a land owner or someone who owns the right of way diagrees.
Easements of necessity
If there is only one route that connects a plot of land to a public road, then this connecting road would then have an easement of necessity. This means that no matter what anyone is doing on the road, whether they are a member or the public or even members of a local authority, the landowner always has access.
Easements by prescription
This type of easement is more difficult to understand. Essentially, if someone is able to prove that over a 20 year period, someone has consistently used a route to gain access to their property and they have done it openly, without the landowner’s permission, they will then be able to get this route protected with a prescription. Known as an easement by prescription.
Easements by prior use
An easement like this must come to fruition if both the landowner and the person who wants access to the land is in joint ownership of someone who lives on the land. This means the reason for the easement existed before the properties were separated.
Easements by estoppel
This type of easement doesn’t have to be signed. It is essentially formed if there is something the landowner has done that shows they are allowing their land to be shared even though this hasn’t been written in a deed.
What are some potential issues with rights of way
There are usually a few main reasons that disputes occur in the first place between landlords and those entering the land that the land owner has. For landlords and landowners, their property business or any commercial company they are running on their land can be impacted by the right of access that is available.
This usually includes:
- The landowner having their business impacted by disruption
- New landowners getting confused as they have not checked over their easement
- The easement holder entering parts of a property they aren’t allowed to
- The easement holder entering the land frequently
Unfortunately, if these issues arise, especially issues to do with costs where a landlord already has costs involved in their business such as the cost of changing locks, there isn’t much the landowner can do about it as the easement is being used correctly. This is why it is important to check if there are any easements before buying land.
How to solve right of way disputes
If you are involved in an easement dispute, there are several steps you can take to try and resolve the issue. First of all, you must understand your legal rights in the situation, which can be done by consulting with a specialist easement dispute solicitor.
Once you know your rights, it is advisable to try and reach an agreement with your neighbour through conversation. If this does not work, you can instruct a solicitor to act on your behalf and potentially take legal action if necessary.
If you need to take your neighbour to court, it is important to do this with legal help and preferably with a legal professional who specialises in the area of the law as things can get complicated. Do not be afraid of spending money on these services as you may be able to write them off as a landlord allowable expense.
How to check your easements as a landlord?
If you know what you’re doing, you can find any easements of a property by searching the database of the land registry using the address of the property here. Having said this, it is a good idea to consult with a solicitor who will guide you through the process.
It may be the case that there are easements but they are just implied easements so they aren’t actually that intrusive to a property or it could be that the right of access document is in fact very obstructive to how you’d want to use a property.
Either way, it would be terrible to complete the purchase of a plot of land or some property only to find out that someone else can legally enter and there isn’t much you can do about it. This is why solicitors are important to find easements and interpret them on the land registry.
In conclusion
In conclusion, easements and right of access documents are a valuable tool to keep things amicable between neighbours who need their space shared and make sure a landlord doesn’t enter without permission.
They can be used to allow access to a property, such as for utility companies to install and maintain infrastructure, or to preserve historical footpaths and access routes.
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