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Posted 13 June 2018
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Right of Way: Who Can Access Your Property?

Farmland

Easements and rights of way – Get off my land! Who can access your property if you have a footpath or right of way running through it

If you have an easement running through your property, you may be wondering who has access to your land.

What is an easement?

At its most basic, an easement is a ‘right to use another person’s land for a stated purpose.’ The easement could refer to an entire property or just a part of it and the ‘stated purpose’ could be anything from laying water pipes to accessing another property.  An easement is granted by one property owner to another and typically means the original landowner can no longer build on or around the land subject to the easement or restrict access to it.

A common type of easement is a right of way. Normally a private right of way is agreed between adjoining landowners. This may be because it is necessary to cross one property in order to reach the other or the easement allows for a more convenient point of access or one property owner needs to cross another’s land in order to reach the public highway. Or an easement may be granted by one property owner to another in order to facilitate access to historically important public woodland or a river used for fishing.

There is also a public right of way, also known as ‘the right to roam.’ This usually arises for one of two reasons: either the landowner has given permission or the local community has traditionally used the right of way for many years.

Types of easement

There are various different types of easement, depending on how the right came into existence:

  • Express grant – typically enshrined in the deeds to a property. It usually occurs when an individual sells part of their property and either needs to grant rights to the sold land or wants to retain some rights over the sold land. These may include a right of way or the ability to maintain utility infrastructure.
  • Prescription – which applies when an individual has been openly using land in a certain way for over 20 years. If they can prove that this is the case, an easement for continued use may exist.
  • Implied grant (easements of necessity) – again, typically occurring when part of a property is sold. However, rather than being written into the deeds to the property, its existence is implied by law.  For instance, if crossing the land that has been sold is the only means of accessing the land that has been retained, an easement of necessity exists.

Who has access to easements?

Private easements and rights of way can only be legitimately used for their intended purpose (e.g. for residential access or to maintain utility infrastructure).  However, ‘right to roam’ easements are open to the general public and cannot be restricted in any way.

Problems with easements

Trouble can arise when the use of land changes.  For example, when someone who relies on access over neighbouring land builds another house in the grounds of their property or develops agricultural land as residential.  Or when a sewage treatment plant serving a small number of houses faces an increased burden due to development.  Sometimes an access way requires repair and it is not always clear who should pay for the work.

Conclusion

When it comes to rights of way, the first distinction is between public, ‘right to roam’ easements which permit any member of the general public to cross the land and private rights of way which restrict the right of access to the owner or occupier of adjacent or nearby land and are limited to their intended purpose. Private rights of way and other easements which were expressly granted are defined by the actual words used to grant or reserve them.  Those which are implied or arise by prescription are harder to define as they depend on the nature and extent of the use which has created them.

Good advice

If there are easements over your property and you are not sure what rights you have to control access, or if you have the opposite problem and need to access another property, talk to an experienced property dispute solicitor with solid expertise in property law.

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About the author

Tozers