Rights of Way
Rights of way can cause considerable difficulties for farmers and we’ve been involved in many disputes over the years in relation to rights of way. Very often these relate to how the right of way is being used or an attempt by somebody to change the right of way.
In general there are two types of rights of way. The first is a right of way that is recorded in a document and registered in the land registry. It records the obligations of everybody concerned and it’s shown on the land registry maps as affecting the lands. Generally this right of way is better for all concerned because it is clearer as to what everybody’s obligations are. The other type of right of way is what’s called a prescriptive right of way and a prescriptive right of way is one you get over time because you have used it for so long. Generally this type of right of way is most commonly seen with laneways leading to a part of somebody’s farm and traveling over somebody else’s land. The position in relation to these rights of way (prescriptive rights of way) is that you can use the right of way for the purpose for which it has been used over many years. But if it’s the case that someone wants to change the use of a property (for example by building a house) then they won’t have a right of way to use the laneway for that purpose.
In general the position regarding rights of way and the use of them is that if the document is silent as to what the rights and obligations of each party are (or indeed if there is no document at all), then the court will make certain assumptions. The first assumption they’ll make is that if someone has the use of a right of way then they have a right to maintain that right of way so that they can continue to use it but they do not have the right to either alter it or change it or widen it in any way. Then in relation to the person over whose land the right of way travels, their obligation is to make sure that the right of way isn’t blocked. For example if there are gates on the right of way then they will provide keys to the person who has the right to travel up that laneway.
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