Rights of Way and boundary disputes

Rights of Way disputes

Disputes concerning rights of way or easements tend to flare up when a party assumes that land which they are accessing is either within the boundary of their own property or publicly owned. The dispute can become more complex if the assumed right of way has been accessed for an extended period.

Regardless of the circumstances, it’s important to avoid confrontation over the issue and to try to resolve the dispute without recourse to legal action. Seeking expert advice will help in this regard.

In its basic form, an easement is ‘the right to use another person’s land for a stated purpose.’ The easement could refer to an entire property or part of it, and the ‘stated purpose’ could refer to a range of activities such as laying service pipes and cables, accessing an otherwise inaccessible property, or joining two separated properties. An easement is granted by one property owner to another and typically means the landowner granting the easement cannot build on or around it or cannot restrict access to it.

If an easement runs across your property, you may wonder who has access and can pass over your land. There are several types of easement which allow for different uses of land.

A “right of way” is an easement which allows the owner of one property to cross another, in order to access it. Further, a right of way may become a ‘right to roam.’ This can happen if the landowner has given permission or the local community has used the right of way for many years.

The most common types of easement include:

  • Express – This is usually set out in the deeds to a property. Typically, it is used when an individual sells part of their property but wants to keep some rights over the sold land, such as a right of access or the right to maintain buildings or service media.
  • Prescriptive – This occurs when an individual can prove they have been openly using land in a certain way for more than 20 years. If so, an easement for continued use may be deemed to have been granted (and the Land Registry may agree to add the easement to the title deeds).
  • Implied grant (easements of necessity) – This typically occurs when part of a property is sold. Rather than being written into the deeds to the property, its existence is implied by law. For instance, if the sold land is the only means of accessing the land that has been retained, an easement of necessity may exist – though it is by no means certain.

For private easements and rights of way, only those legitimately using them for their intended purpose (e.g. for access to or maintenance of the retained land) are permitted. However, ‘right to roam’ easements are open to the public and cannot be restricted in any way.

When it comes to easements, there is an important distinction to make:

  • Public – ‘right to roam’ easements permit any member of the public to cross the land.
  • Private – right of way easements restrict the right of access to a defined group of people.

Boundary disputes

Boundary disputes – even over very small amounts of land – often become fiercely contested and ugly conflicts.

The starting point in resolving the issue in attempting to determine where the boundary is to look at the title documents to the property. However, due to the age and scale of plans sometimes involved, they may be imprecise and only show the “general boundaries” and therefore cannot be relied upon.

Rather than trying to prove that the boundary has always been where it is presently marked (e.g. by a fence or hedge, etc), it is sometimes easier to rely upon a long period of occupation of the land as giving rise to ownership, or the right to apply for it, by virtue of “adverse possession”.  This is a complex area and the law changed in 2003 but, in summary, if a neighbouring owner can prove the right sort of continuous and exclusive possession of the land for long enough (12 or 10 years depending upon the period in question) they may have acquired, or be entitled to acquire, title to the land, even if it was not theirs in the first place although since 2003 this is much harder for land registered at the Land Registry

Relatively small boundary movements might also be shown to have occurred following an informal ‘boundary agreement’ between neighbours (even if not in writing). Equally, a person may be unable to challenge the position of a boundary, even though it can be proved to have been moved, if they are now “estopped” from doing so – on the grounds that their previous actions or inactions would make it unfair to now assert their true property rights.

Ownership of a boundary fence, wall or hedge is another common cause of disputes between neighbours.

On older title plans, and often on the newer site plans prepared by developers, it was common to find “T marks” on the boundary lines to designate who owned or was responsible for the maintenance of the boundary features.  The base of a capital ‘T’ would be placed on the boundary line and the T itself protruded onto the land whose owner owned or was responsible for the maintenance of the boundary feature.

However, this is not an invariable rule and it is not uncommon to find that disputes have arisen because the original boundary feature has either changed ownership by agreement, or been replaced by a later feature which belongs to the other neighbour – e.g. where a hedge was planted next to the original fence, which was the feature marked with the T, but the fence has long since rotted away and only the hedge now remains.

It is a common misconception that the owner of a boundary feature has an obligation to maintain it.  Whilst this may be the case – e.g. because there was a covenant requiring the owner to keep it in good repair – in the absence of such a covenant the owner does not have to maintain it or keep it in place.