Right Of Way Disputes – The Importance Of Understanding Your Rights

For both individuals and companies, often the primary asset they hold is property. However, all too often people misunderstand the land which they do or do not own, and the rights which they have (or do not have) to get to their land.

This might include the belief that an area used to access a property or parcel of land was within the curtilage of your ownership when in fact it was not, or that a point of access that you own is being used by a third party in circumstances where you considered no such right existed.

The issue above is exaggerated and causes significant disputes, where the primary issue at hand is access to a property. If the access route to a parcel of land or your property is suddenly blocked by a third party, or your own land is, without notice, being used as an access route with vehicles or on foot by somebody else, then it is important to take legal advice on what rights do and do not exist.

Specifically, it is imperative to determine and assert the rights which you have, or of course which a third party does not have, in the appropriate way, preferably without an expensive dispute arising.

Sometimes, however, such right of way disputes simply cannot be avoided.

Right of way disputes – case study example

A property and land owner owned a beautiful country house which was classified as a smallholding. The property itself was set in excess of over 30 acres of land and was accessed by a country dirt track which was a little over eight feet wide, and surfaced with gravel.

At the edge of the gravel on both sides was a two-foot wide grass verge, and then a hedge and ditch. The space between the respective hedges therefore for the most part extended to a width of some 12 to 13 feet, plenty wide enough for most (if not all) modern farm machinery.

The property itself was the epitome of a country lifestyle. It had no neighbours in any direction within a mile, beautiful country views, and peace and tranquillity all around, or so it seemed.

The fundamental problem. The access track to the house (which was the only means of access to a public road), ran across a neighbouring farmers’ land. Although for years there had been no issue whatsoever and the farmer took no issue with any machinery or vehicles delivering to the smallholding. All was about to change.

The farm which owned the track was sold to a third party at auction and immediately the neighbours clashed. In particular, the new owners of the farm alleged that whilst the width between the hedges maybe 12 feet and permit any vehicle from accessing, the permitted access road contained within the property deeds only allowed the smallholding to use the ‘track’. That they said, was the eight feet wide area of gravel, and importantly excluded the grass verges. The distinction was important.

At 12 feet wide, the use of the smallholding permitted all modern-day farm vehicles to access, whilst at eight feet wide, most modern vehicles were simply too wide when you consider the overhang of the chassis and body.

The right of way had been granted back in the 1800s upon the original split of a larger farm into municipal areas.  At that time, the eight feet wide track accounted for all vehicles that existed, predominantly horse and cart.

After several unsuccessful attempts to encourage a resolution that worked for all parties, a determination from the Court was the only option. The smallholding was largely unusable as anything other than a house with a restricted access road and the value of the land would be heavily impacted.

Regardless of the fact the extended width of access had no material impact on the farm, they pressed ahead for clarification that eight feet was the extent of the right and were successful in getting such a determination.

Whilst that appeared at first hand to be an unfair conclusion for the owners of the smallholding, the Court was bound to a determination based upon the facts, and the intention of the parties at the original granting of the right of access in the 1800s.

The Court determined that the gravel track was identified upon the plan. As such, whilst the right was not specified to be eight feet wide in writing, the Court concluded that the gravel area would have been sufficient for access at the time, with no need to use the verges.

As such, it was in their view, clearly, the intention of the parties only to grant a right over the eight feet area, and not the wider area to include the verges. The use of the verge was not required at the time and therefore neither party could have intended to use it or obtain a right over it.

The Court’s decision was disappointing but the misery of the smallholding was compounded when within two weeks of the Court’s determination, the farmers installed gates at either end of the track which was of course only eight feet wide, in place of gates previously situated at 12 feet wide.

As such, it was physically impossible for the smallholding to have vehicles of a wider dimension to the property as they simply wouldn’t get through the gates. The farmer, of course, had alternative access to his fields in various locations and the gates as such had no impact whatsoever on his ability to use modern machinery on his own land.

The conclusion from the above case study is that as well as maintaining good relations with your neighbours wherever possible, it is so important to understand exactly what rights of way exist to your land.

Obtaining legal advice

Had the owner of the smallholding taken proper advice and considered the impact of the access rights when they originally purchased, they would have realised the risk they faced. That in turn had a marketable impact on the value of their asset and the desire of any third party to hold such vast farmland when in practice the upkeep of such would be so difficult.

If you are experiencing any difficulties with regards to third parties attempting to use your land for access purposes, or you consider you are being discouraged or impeded from using access to your land which you consider exists, it is important for you to take legal advice as a matter of urgency.