When buying a property, you might come across the term “right of way” during your conveyancing process. Rights of way can impact how you use your land and your relationship with neighbours, so it’s important to know the rules before you commit.
Here’s everything you need to know about rights of way, how they work on private property, and what to do if disputes arise.
Related: Boundary rules: which fence is yours?
What is a right of way?
A right of way is a legal right that allows someone to cross or use another person’s land for a specific purpose. It’s a type of easement – a property right that benefits one piece of land (called the dominant land) while placing obligations on another (the servient land).
Right of way access to property commonly exists when one property needs to cross another to reach the public highway, or when multiple properties share a driveway. These rights don’t give ownership of the land, just permission to use it in specific ways.
For example, if your property sits behind a neighbour’s land and you need to cross their driveway to reach the road, you likely have a right of way easement allowing you that access. Similarly, your property might have rights of way through private property that benefit your neighbours.
Related: What is an easement? A complete guide for buyers
Understanding right of way rules on private property
Right of way rules on private property define who can use specific routes, when they can use them, and for what purposes. These rules depend on how the right of way was created and what’s specified in the property deeds.
Express grant: The clearest type of right of way is created by express agreement, typically documented in property deeds. When someone sells part of their land, they might expressly grant the buyer rights to cross the retained land, or reserve rights for themselves over the sold land. These agreements should specify the route, width, purpose (pedestrian or vehicular), and any maintenance obligations.
Implied easement: Sometimes rights of way exist even without being explicitly written down. If a landowner sells part of their property and the sold parcel has no other way to reach the public road, the law implies a right of way exists by necessity. Similarly, if a shared driveway was obviously being used when the property was sold, that use might continue as an implied right even without formal documentation.
Prescriptive easement: A right of way easement can be established through long use. If someone has openly and continuously used a route across private land for at least 20 years without the owner’s permission, they may acquire a legal right of way by prescription. This applies when the use has been regular, obvious, and unchallenged by the landowner.
Usage restrictions
Right of way rules on private property typically include:
- The route you can take (specific paths or driveways)
- Whether the right covers pedestrians only or includes vehicles
- Any restrictions on times or frequency of use
- Maintenance responsibilities for keeping the route in good condition
- Prohibitions on blocking or obstructing the right of way
The person with the right of way must use it reasonably and not exceed what’s been granted. For instance, if you have a right of way for walking, you can’t start driving vehicles along it without permission.
Related: What first-time buyers need to know
Right of way not on deeds
One common concern for buyers is discovering that rights of way affecting their property aren’t mentioned in the deeds. This happens more often than you might think.
Older properties may have rights of way established before formal registration became standard. If a right of way was created by prescription (through long use), it might not be documented in any deed. In some cases, even express grants were not properly registered with HM Land Registry, particularly if they predate modern registration requirements.
Finding undocumented rights of way
Your solicitor’s property searches should uncover most rights of way affecting a property. They’ll examine:
- The Land Registry title for registered easements
- Historical deeds and documents
- Local authority records for public rights of way
- Physical inspection of the property for obvious paths or shared access routes
However, prescriptive rights of way through private property might not appear in any official records until someone formally registers them. This means you could potentially discover neighbours have legal rights to cross your land based on decades of established use.
Protecting yourself
Always conduct thorough searches before buying. If you notice worn paths or obvious access routes crossing the property, ask the seller about them. Question whether neighbours use any part of the land regularly. Consider having your solicitor investigate further if anything seems unclear.
If you discover an undocumented right of way after purchase, consult a property solicitor immediately. They can help determine whether the right is legally valid and what options you have.
Related: Property searches when buying a house: what you need to know
How to handle disputes over right of way rules on private property
Right of way disputes arise when there’s disagreement about who can use a route, how they can use it, or whether the right exists at all. Common triggers include blocked access, excessive use beyond what was granted, or landowners trying to revoke established rights.
Common disputes
- Landowners blocking access by installing gates, fences, or barriers
- Disagreement over whether vehicles can use a pedestrian-only right of way
- Arguments about maintenance responsibilities and cost-sharing
- One party claiming a prescriptive right of way the landowner disputes
- Changes to property use that increase traffic along the right of way
Initial steps
Start by reviewing the documentation. Check your title deeds, Land Registry entries, and any correspondence from your solicitor’s searches. Understand exactly what rights exist and what’s permitted.
Communicate with the other party directly if possible. Many disputes arise from misunderstandings about what’s allowed. A calm conversation can often resolve issues without legal action.
Document everything. If someone is blocking your right of way or using your land beyond what’s permitted, take dated photographs and keep records of incidents. This evidence becomes crucial if the dispute escalates.
Legal remedies
If direct negotiation fails, several legal remedies exist for right of way disputes:
Declaration: You can ask the court to formally declare the existence and extent of a right of way. This provides certainty without necessarily penalising either party, and can prevent future disputes by clearly defining everyone’s rights.
Injunction: If someone is actively blocking your right of way or using your land improperly, you can seek an injunction to stop the interference. Courts grant injunctions at their discretion, typically when there’s an ongoing or threatened breach of rights.
Damages: If interference with your right of way has caused you financial loss, you may claim damages. However, most claimants prioritise getting a declaration or injunction to secure future use rather than seeking compensation for past issues.
Preventing disputes
When buying property, ensure all rights of way are clearly documented and registered with the Land Registry. If you’re granting someone a right of way, put it in writing with precise terms about route, use, and maintenance.
If your land has the burden of a right of way, maintain clear signage if you want to prevent additional prescriptive rights from developing. Recent case law confirms that visible signs stating “Private Property” can prevent new rights of way from being acquired through long use.
Making informed decisions
Rights of way are a normal part of property ownership and needn’t be concerning if you understand what they mean for your specific property. Many properties benefit from rights of way that provide essential access, while also being subject to rights benefiting neighbours.
The key is knowing exactly what rights exist, ensuring they’re properly documented, and understanding your obligations. Your solicitor will guide you through this during conveyancing, but being informed helps you ask the right questions and spot potential issues early.
Understanding property rights is an important part of any purchase. For expert guidance tailored to your situation, contact your local Parkers branch today.
