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Rights of way: rights and wrongs

Rights of way have been a source of uncertainty and dispute for many years for both land owners and for the people who have the benefit of the right of way.

The problem is often that the parties to a right of way dispute do not know exactly what the law says in this respect. This is partly because the rules affecting rights of way have evolved over many years, rather than having been introduced by a single Act of Parliament. This makes the whole area confusing and so disputes naturally arise.

I was recently asked to advise where a client’s neighbour held a right of way across a dirt and gravel path which runs along the bottom of my client’s garden, leading from a public footpath to the neighbour’s garden. The neighbour threatened to fence off the path and tarmac it. The neighbour claimed that he was able to do this because his Deeds said that he “owned a right of way”. The path had deteriorated over the years but my client did not want it to be tarmaced and certainly did not want a fence putting up across the garden.

In this case, the neighbour was under the quite common misapprehension that “owning a right of way” means that you have some ownership of the land. This may be because we tend to refer to a path itself as being the right of way. Indeed, my dictionary defines a right of way as “a path or road over private land which people are legally allowed to pass along”. In fact, this is legally incorrect: a right of way is not a tangible piece of land, but an intangible right to do something. Owning a right of way does not mean that you own the land, it means that you own a right to pass along the land.

The fact that a person enjoys a right of way but does not own the land means that they cannot erect a fence without the land owner’s permission. Land owners would generally be best advised not to permit a fence to be placed across their land as this may exclude them from their own land and create future legal difficulties for them.

There are further rules affecting the condition of the land subject to the right of way. Those with the benefit of a right of way often believe that it is the owner of the land who must pay for it to be repaired. However, the law says that the person who holds the right of way must pay for it to be repaired as the right of way is for their benefit, not the land owner’s.

That said, whilst this rule may lead a person who has a right of way to think that they can do as they like with the land as long as it is at their own expense, this would be another misapprehension. In the above case the neighbour wanted to tarmac the path, presumably because this would make his access easier. However, the legal position is that although the neighbour could repair and maintain the path, he is not allowed to improve the path beyond its original condition. He was not therefore entitled to tarmac the path without the land owner’s permission.

Disputes over rights of way can be drawn out and unpleasant. Neighbourly relations are often destroyed. If a dispute does arise, the parties are best advised to try to discuss the matter and come to an amicable arrangement. If this is not possible, the parties should seek legal advice at an early stage with a view to resolving the dispute before disproportionate amounts of time, energy and money are spent by both sides.

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Kieran Bond

Kieran Bond

Regional Risk and Compliance Partner

Kieran is a Partner working in our Compliance department. He is primarily based in the Shropshire office.

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