What is a Right of Way?

9 min read
In terms of land, a right of way is:

"...the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another."

Rights of way are one of the most common types of easement which often provide access rights to owners of adjoining lands. However, rights of way can also be given to the general public (known as the right to roam) if:
  • The land is designated as 'open access' - such as mountains, moors, heaths and downs.
  • The landowner has given permission for access ('permissive access') via a permissive path.
  • There is a local tradition of access.
Additionally public rights of way exist across many types of privately owned land, in the form of footpaths, bridleways and byways. Landowners must ensure they do not obstruct or interfere with these public rights of way.

When you're buying a home, there is always the possibility that there may be a right of way over some part of your land. Your solicitor finds out whether this is the case when they investigate the title of your property during the legal enquiries stage of the conveyancing process.

The article which follows looks at rights of way and considers the following:

How does your solicitor find out about whether your property involves a right of way?

Once your conveyancer has received the contract pack from the vendor's conveyancer, they examine the Title Deeds (or Office Copy Entries) in particular, as well as the Property Information Form TA6, to see if there are any references to rights of way. If there are, your solicitor will brief you about their extent and what the legal and other implications are.

How are rights of way created in England and Wales?

Rights of way are created in the same way as easements. In terms of permissive access, the landowner can either reach a formal agreement with the local council or may decide to publicise its availability in a less formal manner (for example by displaying signs).

To expand on this further, new public rights of way (including footpaths, bridleways and restricted byways) can be created by the following means (please note that for some of these, if you have a right of way over your property, you might have to pay to maintain it):

A landowner can expressly dedicate a footpath, bridleway or restricted byway as a public right of way. Additionally if the public use the conduit for at least 20 years unchallenged then this may give rise to a presumption of dedication under S31 of the Highways Act 1980. NB a conduit created by an express dedication is not automatically maintainable at the public expense.

    Public path creation agreement
A local authority can make an agreement (known as a public park creation agreement) with a relevant landowner to create a footpath or bridleway over land in their area, under S25 of the Highways Act 1980. They only have to consult other local authorities in whose area the path will be; they don't have to consult the public, for example. They have to advertise the agreement in the local press and the public then have to maintain the right of way.

    Agreement between a parish council and landowner
A parish council can make an agreement under S30 of the Highways Act 1980 with a relevant landowner to create a footpath, bridleway or restricted byway over land in their area and they don't have to consult, although the path is not automatically maintainable at the public expense.

    Public path creation order
A local authority (district or county council or unitary authority) can make an order to create a footpath or bridleway over land in their area under S26 of the Highways Act 1980. It can confirm its order and make the path if there are no objections; if there are then an inspector from the Planning Inspectorate must arbitrate.

    Street Works Authority
A county council or unitary authority can declare a street to be a highway maintainable at the public expense under S228 of the Highways Act 1980, as long as the street works authority carries out work appropriate to the conduit along its route (e.g. if it's a potential bridleway, the authority cuts the grass). The street owner can object at the proposal stage and can take the case to a magistrates' court to arbitrate. If the county council win, the street is maintainable at the public expense.

Where are public rights of way in England and Wales listed?

In England and Wales, rights of way only exist where they are so designated (or are able to be designated if not already).

Footpaths and rights of way in most of England and Wales are shown on definitive maps. The highway authority (normally the county council or unitary authority) has a statutory duty to maintain a definitive map, though in national parks the National Park Authority usually maintains the map. London and the City of London however do not have to maintain definitive maps.

If you wish to check whether a right of way has been designated, you should therefore consult the relevant local authority to view its definitive map if outside London, or for within London you should visit the Rambler's Association website, where you can use their postcode search and other tools.

What is the right to roam?

Potentially a property you buy might also be affected by the what is known as the 'right to roam'.

The public has the conditional right to walk in certain areas of the English and Welsh countryside: principally downland, moorland, heathland and coastal land.

This was enshrined in the Countryside and Rights of Way Act 2000 and is in addition to rights of way, and does not extend to horse-riders or cyclists. Access land may be closed for up to 28 days per year, whereas rights of way must remain open at all times, except in exceptional circumstances with special permission of the local authority.

For more information about the right to roam, please consult the Rambler's Association website (see link above).

What is a permissive path?

It's just possible a property you're looking to buy has what is known as a permissive path.

A permissive path, permitted path or concessionary path is a path (whether for walkers, riders, cyclists, or any combination) the use of which the previous landowner has allowed. The path may not be on the definitive map of public rights of way but that does not prevent it from already being a public path for any or all of those user categories mentioned. For instance it might be a historic route fallen into disuse or it might have been used for twenty years 'as of right' by the public, in both cases being a public right of way which is not yet shown on the definitive map. Some permissive footpaths and bridleways are shown on 1:25,000 and 1:50,000 scale Ordnance Survey maps.

A permissive path is often closed on a specified calendar day each year (lawful only if it is not already a public right of way of some description), and clearly signed (e.g. a signpost or waymark) as permissive. The act of so closing or signing it ensures that any future use of it does not count towards the 20 years use 'as of right' needed to establish its public status. These are precautions to prevent it becoming designated as a statutory right of way in relation to its permitted use.

Can a right of way affect your property price?

A right of way can affect your property price particularly if there are many of them. It might, for example decrease the number of possible future building sites and this might be unattractive to future buyers.

You should also pay close attention to a situation where a right of way is not currently in use but may become so in the future for the same reasons.

How do you resolve right of way disputes?

The first thing you should do is negotiate with the other party or parties involved if the right of way is a private one; going to court is generally an expensive option.

If the right of way is a public one, you would need to discuss any issues with the local highway authority.

Can a right of way be removed?

Rights of way on private land can be discontinued or closed in a similar way to easements. The following examples may be negotiated with the relevant entity or tested via an application to a court (regarding the below, remember that a right of way is a form of easement):
  • Expiration - some rights of way end at an expressed date set out within a deed of easement (express grant)
  • Release – agreement with the dominant tenement (the person or organisation who is in control of the easement) to release the servient tenement (you) from the easement
  • Abandonment – the dominant tenement shows they intend for the easement to end
  • Merge – both the dominant and servient tenant join and are placed under a single title such as if a buyer purchases both pieces of land. Essentially the easement becomes redundant because the landowner owns both pieces of land and their is no need for a right to use.
  • Necessity – the necessary reason for the easement no longer exists.
  • Condemnation – The government takes over the property and essentially condemns it.
  • Prescription – the servient tenement disallows the dominant tenements use of the easement by continuous, open and hostile use of the easement for at least 20 years.
  • Estoppel – if an easement is unused, the servient tenement relies on this ‘termination’ in good faith so the dominant tenement cannot enforce its rights. This is a very complicated legal doctrine and by far the most complicated and uncertain to enforce.
For public rights of way, you need to consult the local highway authority about whether they might be able to close or divert the route; ultimately you also have recourse to the courts.

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