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.
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  EWHC 1180 (Ch). The Claimants and the Defendants 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 in an effort to seal off a section of it. 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. Due to the restricted area of the access road 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 also asserted that they had acquired a right to park on the access road by what is known as ‘prescription’. In broad terms, this is a legal mechanism through which rights over land can be acquired by showing that the land was used in a certain uninterrupted way for a long period of time. In this instance, the Claimants argued that vehicles had been parked on the access road for over 20 years continuously by previous owners of their properties.
In deciding the case, 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. 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.
This case demonstrates the importance of understanding exactly what rights affect your land before purchasing a property and also 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.
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