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Path through Dunes

Rights of Way

A Right of Way has to attach to a piece of land; it cannot exist separately from a piece of land. So it will appear in the deeds or the lease of that land. But the language used to create it must be clear, and if the nature of the land changes over time (for example it is split up and part sold off) then the right-of-way may cease to exist.

A right-of-way has two elements to it: the land with the benefit of the right is called the ‘Dominant Tenement’; the land subject to the right is called the ‘Servient Tenement’. Here are the key points of a right-of-way:

  1. Attachment: the land has the right, not the owner of the land. So, Arnold’s right-of-way arises only because he owns the land which has the right. He cannot sell the right-of-way separately. So, unlike his lawnmower, when Arnold sells the land, he cannot keep the right-of-way.  
  2. Purpose: a right-of-way exists only while it has a purpose. Imagine two bungalows built one behind the other. Alf owns Alpine, next to the road; Bert owns Bawbel, built at the back and overlooking the sea. Bawbel has a right-of-way over the land of Alpine. Over time the sea washes away the land underneath Bawbel and it topples into the sea. What happens to Bawbel’s right-of-way? It disappears along with Bawbel. Why? Because it no longer has a purpose: the land it was there to reach has disappeared.  So, Bert, who likes to walk up and down the track playing his violin, will now need Alf’s permission.
  3. Registration: a right-of-way must be protected. If the land over which it passes is Unregistered land, then it should be recorded in the conveyance of the servient land. If the land is Registered land, it should be recorded as a land charge against the property’s registered title.
  4. Rights Over Time: a right-of-way can arise by ‘prescription’, i.e. by use over time. But three things must not be present: force, stealth or permission. First, So the use must occur without force - breaking down a fence will not do; second, the use must be obvious. So, crossing the land only at night will not do. Third, the landowner’s permission will nullify any acts of use. So a notice board saying: ‘The landowner hereby permits pedestrians to cross at this point’ will nullify any subsequent use.

If you think your land may be affected by a right-of-way, by all means, call for advice.

See the Land Registry’s Practice Guide No 52 available at www.gov.uk 

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Rights of Way
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