Matthew Wayman answers your Rights of Way questions
We take a look at the difficult issue of rights of way with questions from property owners who are affected by them.
The questions consider what a right of way is, how someone acquires them and what might happen if someone tries to prevent you from using one.
Q. One of my friends mentioned the issue of ‘rights of way’ to me in a discussion about a footpath that runs across the back of my property which my neighbours often use. I live in a terraced house, I’ve never really come across the subject before, so what are the basics I need to know?
A right of way is essentially the right of a landowner (potentially your neighbours in your scenario) to make use of land owned by someone else and is only related to a specific area. A right of way is often known as an easement. It always relates to the land.
Q. My family and I have regularly made use of a path which runs through my next-door neighbour’s land to put our bins out for what seems like years without any problem. However, the new occupants have put their foot down and told us we are not allowed to go around there anymore – is there anything we can do?
Firstly, you need to check the deeds to your property. You may benefit from an expressly reserved right. If you haven’t you may have acquired a right in any event. The key issue here is the period of time that the right of way has been in use. This is because, to prove a right, you need to be able to prove that you have been using the path openly as of right for a continuous 20-year period.
If you can do this, then you have every opportunity to obtain a formal declaration that you have acquired a right of way – meaning that your new neighbour simply is not allowed to stop you from using the pathway.
However, you need to be sure on the time period as this is the fundamental aspect of this kind of scenario.
Q. I have to use a driveway which technically crosses my neighbours’ property to get to the front of my house. I have a right of way reserved in my deeds. However, they have installed an electronic gate and are now refusing to give me the code to gain access. Do I have any legal rights to counter this?
You can class an issue like this as an interference and can make a claim to the Court that your rights have been affected by this development.
The Courts would use a test of ‘substantial interference’ to consider the problem and assess how it affects the right of way. In a scenario like this, it is hard to imagine that a Court would not regard a locked gate which was not originally present as an interference.
When facing this kind of problem, it is wise to collect some evidence which the Courts could use to determine how the interference has affected your right of way. For example, pictures or video evidence of the consequences could be very useful in proving just how this issue has impacted on your life. However, remember that any such evidence should be shared with your neighbour in order to give him or her a chance to respond or tackle the problem.
If they there is no response, you could then go to Court and ask to get the gates removed or a key provided to use the right of way as you had previously.