Rights of way: what is interference?

A right of way is, in its simplest form, a right to pass across somebody else’s property. There might be conditions attached. For example, only pedestrian access may be allowed. Or the access might be limited to certain purposes only, such as for the purpose of property maintenance.

The owner of the land that has the right of way running across it is known in legal terminology as the ‘servient owner’. And the owner of the land that enjoys the benefit of the right of way is known as the ‘dominant owner’.

Although there is literal logic to these terms, they are occasionally interpreted in the less helpful sense of a domineering land owner with rights over a long-suffering, servile neighbour. Certainly not what the legal terminology intends to convey but often what is seized upon by property owners who have fallen out and who are spoiling for a fight over some perceived interference with a right of way, or, conversely, some excessive and inappropriate use of a right of way.

A situation that often arises concerns the locking of gates and the effect that this has on somebody’s ability to continue to enjoy their right of way.

If a landowner locks a gate and stops you, as the person with the benefit of the right of way, from using the right of way, the position is simple. That is an unlawful interference. You can take action to stop it.

The situation becomes more nuanced when the gate is locked but you are given a key. The neighbouring owner – namely the servile, servient owner – would argue that you still have access. You just need to use the key.

That is all very well. But a right of way will typically allow not only you to use it but also your visitors and agents. Depriving a visitor of access is, in a legal sense, the same as depriving you of access. Clearly it is not possible to issue a key to all those who may visit your property at some time in the future. Issuing a key to you eliminates any interference for you, but it fails to eliminate the interference for your visitors. The net result is that there is still an unlawful interference.

The solution that is often trotted out optimistically is the key code option. Who needs a key when a gate can be operated via a key code system?

Putting aside the cost implications of installing electric gates or an electronic locking system (the cost of which is likely to be for the servient land owner to worry about), you still have exactly the same problem: how do you issue a key code to all your visitors in advance of them visiting you when you have no idea who is going to visit and when they are going to visit?

What about postal deliveries? Or access required by emergency services?

A key code system is clearly not the answer.

Having some form of intercom that allows visitors to speak to you so that you can unlock the gate remotely is one potential option. But in practice, it is likely to be expensive. And it is often not workable as it is dependent upon you being contactable at all times or in the house where the intercom alert sounds.

The problem you have here is trying to reconcile the servient owner’s desire to maintain or improve security by having a locked gate (which, of itself, is a reasonable motivation), and the dominant owner’s perfectly reasonable desire to ensure that his guests and visitors are not locked out.

So how do you get around this?

The answer is simple. You can’t. Don’t lock that gate without consent.

The legal test is whether the right of way can be exercised “as conveniently as before”. If your visitors cannot get past the gate, the test is failed and the servient owner has a problem.

And that is the time to seek advice.

Please contact Andrew Turner at aet@hughes-paddison.co.uk or on 01242 586 841 if you have any questions relating to your property rights.