Rights of way - 3 common trip hazards

A right of way is, in its simplest form, a right to pass from point A to point B, and back again.

It is a right that one landowner has over the land of another owner. The right is often (but not always) granted by a deed, typically a conveyance.

The grant should refer to a plan and will contain words such as: “A right of way is granted for the benefit of Mr and Mrs Neighbour’s property along the access lane shown shaded in blue on the attached plan.”

So far, so good. That all sounds pretty straightforward.

But disputes over rights of way arise all the time. Often, the dispute is not about whether a right of way exists or not but whether the right of way is actually being used in the correct manner.

Questions that arise might be along the lines of the following:-

“My neighbour has a right of way over my land to his house. He has just built three new houses in his garden. It surely can’t be right that I will soon have three other houses using the right of way?”

Or the question might be:

“My neighbour has a right of way over my driveway. He has started parking on the driveway. Does a right of way include a right to park?”

Or, from the perspective of the person with the benefit of the right of way, the question might be:

“I am planning to convert my house into a hotel. I have a right of way along a lane owned by my neighbour. Will the change of use from residential use to hotel use invalidate the right of way?”

These scenarios are not uncommon. I will deal with each in turn.

One house becomes three houses

The basic starting point is that if your land benefits from a right of way, you can build another house on your land and that new house will also benefit from the right of way. Indeed, you can build two houses on your land, or three houses, and the right of way will benefit each of those houses.

There is a caveat. And the caveat is that the use of the right of way must not become excessive or become a nuisance to the owner of that land. Put another way, the use must not interfere unreasonably with the enjoyment of the land by the owner.

But that caveat aside, this is not a numbers game. A right of way attaches to the entire parcel of land, and each part of it. And where new houses are built on that parcel of land, the starting point is that those new houses each acquire the benefit of the right of way.

A right to park?

As for a neighbour parking on land over which he has a right of way, the simple position is that a right of way is entirely distinct from a right to park. A right of way is a right to move across land, and to keep moving. It is not a right to park your car, to have a two hour picnic, and then carry on moving. One can certainly park temporarily for the purposes of opening or shutting a gate but a right of way involves movement and is inconsistent with a right to remain stationary.

Change of use: residential to commercial

There is a widely held, and mistaken, belief that a right of way benefitting a residential dwelling has some invisible label attached to it which says that the right of way can only ever be used for residential purpose. This is not correct.

Unless the deed that granted the right of way specifically states that the right can only ever be enjoyed for private residential purposes, it is perfectly lawful for the purpose to be residential or commercial, or indeed any other purpose. A change of use from residential to commercial does not affect the validity of the right of way.

Again, the caveat that I have referred to above about excessive use and causing a nuisance still applies. The question is whether the change of use interferes unreasonably with the use and enjoyment of the land by others. This involves looking at the volume of traffic, the potential damage to the surface of the land, the additional noise, and so on.

But the starting point is that just because the right of way is used for residential purposes today, that does not mean that you cannot use the right of way for commercial purposes tomorrow. Purpose is immaterial.

The legal position was stated in clear terms in the case of White v Grand Hotel, Eastbourne Limited [1913] in which the Judge stated that:-

“The only thing that the Court has to do is to construe the grant; and unless there is some limitation to be found in the grant, in the nature of the width of the road or something of that kind, full effect must be given to the grant…”

In other words, unless the deed that granted the right of way contains express restrictions on how the right of way is to be used, the Court is not going to be interested in an argument about a right of way being used for residential purposes rather than agricultural, or for commercial purposes rather than residential.

Keep an eye on excessive use that causes a nuisance, and study the express terms of the right of way carefully, but be wary of rushing to judgement on the purpose of the right of way.

If you have any questions relating to rights of way or matters raised in this blog, please contact Andrew Turner at aet@hughes-paddison.co.uk or on 01242 586 841.