Know your rights over neighbouring land

Landowners should always be mindful whether their land benefits from any rights over a neighbouring area of land or vice versa. These rights are known as ‘easements’ and a commonly encountered and very important easement is the private right of way. This is a right to pass over a piece of land to access your land, whether by foot or by vehicle depending upon the specifics of the easement granted. A classic example of a right of way operating would be the right to travel across an access road which leads off of a public road in order to gain access to your property. If you were to travel across the access road without having a right of way, you run the risk of trespassing.

When can rights of way be acquired?

In an ideal world, easements are clearly documented. Unfortunately, problems can arise where easements are not defined in detail and are therefore open to uncertainty. This issue can be illustrated by looking at the case of Begley v Taylor [2014] EWHC 1180 (Ch). The parties owned properties off of a cul-de-sac which could only be accessed via an access road which, in turn, connected to the main road. The Defendants owned the access road, although the Claimants’ properties were granted a vehicular right of way over it in 1973. Whilst the right of way over the access road was documented, it was silent as to the extent of that right and, more specifically, whether the Claimants had a right to park on the access road.

The dispute in this matter occurred after the Defendants took unilateral steps to install gateposts on the access road and the Claimants contended that the gateposts caused an obstruction which interfered with their right of way over the access road and their right to park. It was argued that the installation of a gate would, in practice, prevent the Claimants from being able to turn their cars in the access road and park. The Claimants accordingly sought a declaration as to the extent of their right of way and an injunction ordering the Defendants to remove the gateposts and restrain the Defendants from obstructing the access road. The Defendants counter-claimed for, amongst other things, a declaration that the Claimants were not entitled to park on the access road.

The Claimants asserted that they had acquired a right to park on the access road by what is known as ‘prescription,’ a legal mechanism through which rights over land can be acquired by showing that the land has been used in a certain uninterrupted way for a long period of time without interference. The Claimants argued that vehicles had been parked on the access road for over 20 years continuously by previous owners of their properties.

The Judge found in favour of the Claimants and commented that the evidence demonstrating that cars were parked on the access road historically was overwhelming. Indeed, one of the witnesses who gave evidence on this point was a previous owner of one of the properties for over 30 years. As the landowner had not objected it was as if a right had already been granted. The Judge ordered that the Defendants remove the gateposts from the access road and also reinstate the surface of it, no doubt at substantial cost.

Notices

Had the landowner erected notices stating that the land was private and could not be used for parking, as was the position in Winterburn v Bennett [2016] EWCA Civ 482, the unauthorised use of the land could not be said to have been as if the right had already been granted and would have prevented the activity from maturing into an easement. In Winterburn v Bennett it was held that even where the sign was ignored for the prescriptive period, and no attempt was made to enforce the landowner’s rights the very existence of a sign was enough to prevent a right of way from emerging. Lord Justice David Richards acknowledged that no actual confrontation should be required due to its “social cost” and that “the law of property should not require confrontation in order for people to retain and defend what is theirs.” The legal burden of proving that the relevant use is without permission and without force is on the party claiming the easement .It is important to understand exactly what rights affect your land before purchasing a property and prior to embarking upon any works or alterations which could potentially interfere with those rights. It is therefore essential to obtain proper advice when any construction or development work is being considered on a piece of land where the legal rights attaching to that land are uncertain. Failure to do so can have serious and often costly implications as the unlucky Defendants discovered in Begley v Taylor.

Edwin Coe LLP are industry leading specialists with experience of resolving a wide range of property disputes including:

• Easements and rights of way disputes;
• Injunctions;
• Conveyancing disputes;
• Local Authority disputes;
• Planning appeals;
• Professional Negligence claims; and
• Trespass, nuisance and damage claims.

If you require any advice concerning a property dispute, or any other land and property related rights, please contact Partner Shams Rahman or a member of our Property Litigation team.

This post was originally published 29/03/2016 and updated 20/07/2023

If you aren’t receiving our legal updates directly to your mailbox, please sign up now