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How to Avoid Problems With Access and Rights of Way

When purchasing or leasing land, whether it is commercial or residential, you will need to ensure that you have adequate rights of access to and from your property.

Without these you may be restricted from using your property as you intend or even at all in the worst case scenario. In the long term, access problems will also affect the value when you decide to sell your property so should be dealt with in advance.

Private and public rights of way

There are essentially two main types of rights: public and private.

Public rights of way arise from statute and are usually highways.

Private rights of way are referred to as 'easements' and may be:

  • granted expressly, for example a right of access over neighbouring land or a right to connect to and use private drains as provided for in your title deeds;
  • implied, for example a right of way that is required out of necessity; or
  • arise as a result of long use over private land, often referred to as prescriptive rights, for example where a footpath has been used for a continuous period of 20 years or more.

There is a third type, customary rights, which loosely fall into the category of private rights and provide some form of access required by a whole class of persons. For example, a right of access to parishioners to go to and from church over private land.

Identifying and obtaining rights of way

Firstly you should inspect the property and make enquiries with the seller or landlord (and neighbours) as to the rights you need and those which may already exist. Your surveyor may also identify any potential concerns with access.

As your solicitor, we would carefully check the title deeds, or lease, to see what rights may have been expressly granted.

If the rights of access that you require are not included in your title deeds, you will need to establish whether they have been created by long use. To establish this right, such use must be continuous for 20 years or more. This can be quite difficult to prove where the current owner has only occupied the premises for a number of years and they are unable to trace any previous owners.

Alternatively, you will need to see if such rights of way can be obtained from the land owner. This can be costly as it is often the case that a land owner will charge a premium. Of course, the negotiations and preparation of the necessary right of way deed can add delays to completion.

Part of our role includes carrying out a local authority search, as this will reveal which roads near the property are adopted highways (and so maintainable at public expense) and whether there are any other public rights of way which affect the property such as a public footpath.

This search will also reveal if there are any 'gaps' between the boundary of your property and the boundary of the adopted highway which would indicate that you will need to obtain a right of way over it.

Potential problems

There are numerous problem areas for both residential and commercial premises where rights of way are concerned. A few of the more common ones include:

  • Shared driveway - without a right of way you cannot access your property. Not only will you need to ensure that there is a right of way that you can benefit from, you will need to identify whether this right provides for both vehicular and pedestrian rights of way.
  • Parking - a right of way does not include a right to park and so if you need parking you will also need to ensure this right is included separately.
  • Ransom strip – a strip of land between your boundary and the highway may have been excluded intentionally to prevent development without payment of a sizeable premium to the land owner.
  • Stairways – occasionally, where you buy or lease premises that are not on the ground floor the right of access over stairways can be overlooked.

Conclusion

Without adequate rights, access to your property may be restricted and this could affect its value considerably.

Establishing a right of way is a complex area of the law and you should seek our advice before proceeding with any property purchase, in particular where there is any concern about access.

To find out more information, please contact our legal team on 08000 111 303 or alternatively fill in the Call Back Request form to the right of this screen.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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