Rights of Passage
There are two sorts of right of way, either public or private. A public right of way is open to everybody to use, e.g. over a public footpath. This article is about private rights of way.
A right of way is merely one of many types of easement, i.e. a right exercised by the owner ("the grantee") of one property over the land of another ("the grantor").
There are several different ways in which a right of way can be created, the most obvious being by express grant in a deed. It is to be hoped that the solicitors drawing up the deed do so in such clear terms that there can be no argument about what was intended. The Courts, however, have been full of cases where this was not the case, and arguments ensued over the width of rights, the purposes for which they could be used, the volume of traffic using them and so on. If no mention is made in the deed about repair, then neither the grantor nor the grantee have any obligation to maintain the right of way.
If there is a shared footpath running behind a row of cottages, you cannot extend your house across the path without a formal diversion of the right of way. Do so and you could be ordered, by the Court, to demolish your brand new kitchen!
Another common way is to establish a right of way by long use. This arises when one person (or a succession of owners hoping to claim the right) enjoys the use of a particular access over another’s land as of right for a period exceeding 20 years (evidenced by formal statements made by each owner until the required period had been reached). Such use by the potential grantee requires no objection from the landowner, in accordance with the maxim (when the powers that be allowed us to use Latin) ‘nec vi, nec clam, nec precario’, which means ‘without force, without secrecy and without payment or consent’. Obtaining the consent of the landowner would acknowledge his entitlement to refuse the use of the access, which would mean that the grantees were not enjoying it as of right.
Very technical!
Sometimes it is difficult to produce the evidence of 20 years use without objection. However, we now have available indemnity insurance policies which enable the grantee to insure against the risk of the landowner raising an objection, so long as the access has been freely used for at least one year. These policies have their drawbacks, but they have the advantage of satisfying the rules issued by the mortgage lenders, so in that respect they have eased the conveyancing process. (They have also put millions of pounds into the pockets of the insurance companies.)
Published summer 2010
