If you have ever been rambling you’ve probably used a public ‘right of way.’ According to English and Welsh law, a public right of way refers to a path across someone else’s land, which all members of the public have a right to use in order to ‘pass by’.
Private rights of way operate in a similar manner – but rather than allowing any member of the public to pass by, the owner of the piece of land has given the right to a particular individual or group of individuals to cross a piece of land or through a property.
Often, a private right of way is agreed in writing between two parties. This is known as an express agreement and is common where, for example, a parcel of land has been sold and one party needs to cross the other’s land in order to get to theirs.
Sometimes a private right of way can be ‘implied’. For example, a landowner may similarly sell a parcel of land, keeping part for their own use without ‘expressly’ stating that the buyer has a right of way to cross the land in order to access theirs, but in such circumstances the law will often assume there is an ‘implied right of way’.
Acquired right of way
An acquired right of way, also known as ‘claiming a right of way by prescription,’ is a common method of attaining a private right of way and relies upon the length of time that a person has relied upon this access.
Usually, a right of way can be acquired if you can prove that you’ve used a particular route regularly for a period of at least 20 years AND that this access is a benefit to the land you own or rent.
Acquired rights of way cannot be claimed if you have been accessing the route in secret or by using force.
Extent of a right of way
Not all private rights of way are created equally. The question of whether access is permitted only if you are on foot, whether you can drive a vehicle across the land or even herd cattle across it, will depend either on the written terms of the express agreement or, in the case of an acquired right of way, the type of use that first provided these rights.
The rights of both the landowner and the individual seeking the right of way can become highly emotive and lead to a complex dispute if prompt legal advice is not sought.
If you are concerned about a private right of way matter, contact our property dispute team and we can explain your rights and how to enforce them as cost effectively as possible.