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Easy Easements: What You Need to Know About Rights of Way

When you go through the process of buying a property, your conveyancer will embark on a range of searches and investigations on your behalf. In the best case scenario, the results will all be dull and predictable and you’ll be able to get on with thinking about more exciting things, like move in dates, house warming parties and what wallpaper you’re going to put in the downstairs loo.

However, sometimes perfect properties can be harbouring less-than-perfect secrets, and all the work your conveyancer does during this process is intended to flush these out. After all, if any skeletons in the closet are missed at this stage, it could very well spell trouble in the future.

One of the things your conveyancer will be investigating is where your proposed property stands on rights of way. There are two key questions your conveyancer will be looking to answer here:

  1. Whether there are any rights of way over the property.
  2. Whether any necessary rights of way are in place to allow you to access the property.

To be clear, rights of way, also sometimes known as ‘easements’, are not necessarily bad things. However, if there’s an easement or right of way in place, you’ll want to know everything there is to know about it.

What if your property has a right of way over it?

There are all sorts of things that can come to light in the conveyancing process. Some are more drastic than others, and unexpected rights of way typically fall somewhere on the spectrum of Japanese knotweed infestation to bats in residence. Unfortunately, like bats, once established, a right of way can be almost impossible to get rid of.

Private rights of way

A private right of way is when a specific individual, group of individuals or a property has a right of access across your land. This might be due to a shared driveway situation with a neighbour, or because historically one property sold a portion of land to enable a second property to be built and has retained a right of access over it.

A private right of way might also exist to allow visitors to pass over the land of one property in order to access the property of another reasonably public building, such as a church, community centre or Scout hut.

Public rights of way (public footpaths and bridleways)

You might be more alarmed to find out out that there’s a public right of way such as a footpath or bridleway tracking across your property. A public right of way is essentially exactly as it sounds; any member of the public will be within their rights to walk along it. Public footpaths and bridleways generally cross farmland or similar, but they are sometimes found in gardens (though usually not within twenty yards of a house).

It’s important to note that you’ll be responsible for maintaining a public footpath or bridleway on your land, though you may get some assistance from the local authority. Your conveyancer may recommend that you take out an insurance policy to protect against any legal challenges that arise as a result of someone injuring themselves on your land.

Easement

A right of way is typically known as an ‘easement’ if it exists to allow access for a particular reason, such as to provide access to another property or to access utility lines. An easement can be private or public.

Prescriptive easements

A prescriptive easement might sound fancy and complicated, but in reality it simply means a place where there’s no formal right of way in place, but that the land has been used as such for long enough that the usage has become entrenched. For example, if everyone in the village has been taking a shortcut through the orchard of a property for as long as anyone can remember, the villagers will have earned a right over that shortcut. The magic length of time in these situations is usually twenty years of uninterrupted use.  

What if you need a right of way to get to your property?

Of course, you might be a bit keener to have a right of way in place if it means you can actually access your own property. This will be important if the property you’re buying is on a private road, is set back from a public highway or if it’s accessed via a shared drive. If your conveyancer can’t provide solid evidence that there’s a right of way in place that clearly allows access, the mortgage provider may decide to pull out.

This sort of right of way may also be relevant for flats on the first floor or above. In situations such as these, the owners of the flat may not have any claim on the land in which the staircase to access their flat is located, and a right of way may well need to be in place to protect this.

Your conveyancer will also look into what the agreement is re: parking. Having a right of way over a certain section of land is not the same as having the right to park on that land.

Section 38 agreements

You might imagine that rights of way are something that will only affect you if you’re purchasing an older or rural property, but they can be a fairly key consideration when buying a new build, too. When developers build a new estate, they often need to build their own access road to connect all the new homes to existing public highways.

In these situations, the developer will typically aim to enter into a section 38 agreement with the local council. This is when the local council agree to take ownership of the new road and maintain it as they do the rest of their public highways. There’s typically a long handover period involved, and for the first year or so the road will still belong to the developer rather than the council. If you’re buying a property in this sort of development, your conveyancer will want to be sure they’ve vetted the situation with the section 38 agreement and that it all looks watertight.

Can you do anything about a right of way?

If you’ve discovered that your dream property has a public right of way going right across the garden, you might be feeling somewhat concerned. Though in the vast majority of cases people live very happily with rights of way, there are plenty of reasons why you might object. Movie stars and nudists might have obvious reasons not to want uninvited visitors, and it’s also very possible that a right of way could scupper your plans for an extension.

So is there anything you can do about an unwanted right of way? The short answer here is… probably not. It’s sometimes possible to reroute a right of way or public footpath/bridleway, but only if the alternative route is just as convenient to the public users and so long as no one objects. However, this is by no means a guaranteed process and can involve a lot of legal hoop-jumping.

If a right of way has been formalised, it’s very unlikely that you’ll be able to, well, unformalise it. However, if we’re talking a prescriptive easement, you may be able to work with a solicitor to lodge a deed with the Land Registry to bring it to an end, but only if it’s been in use for less than twenty years.

If you’ve got yourself in a tailspin about rights of way, we’ll be very happy to help you straighten things out. Drop us a line and we’ll do what we can to help (though please note that we don’t offer any special treatment for movie stars… or, for that matter, nudists).

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