Rural rights of way: where do you stand in a dispute?

Increasingly the development of rural land is giving rise to disputes about access, as solicitor Darren Higginson explains.

As a solicitor dealing with property disputes, I am often asked to advise clients on issues relating to rights-of-way over rural tracks.

The use of a track may have been minimal until there is a change or increase in the use of neighbouring land, perhaps when planning consent is obtained for its development.

Disputes can crop up where there are two sets of conflicting historical documents, for example, the documents held by the owner of the track may not mention of any right-of-way to access another piece of land, but the owner of that land may have documents which seem to give them such a right.

Increased property development

Issues can come to a head when a rural property is developed, or additional properties are added to a piece of land. Development often leads to an increased use of a track which in turn interferes with the use of the landowner. It can also affect the condition of the track and cause the surface to deteriorate more quickly than it had previously.

A pedestrian right-of-way is usually less disruptive and more readily accepted and so the most contentious disputes regularly involve vehicle access.

Often, disputes are let go or are resolved through negotiation before they get to a court or tribunal, but the more important the track is to its owner, or the heavier the use becomes, particularly where the track is the only means of access to a particular piece of land, the more vital it will be to preserve or restrict the use.

How far a dispute is taken often depends on the cost benefit for those involved and sometimes the costs may be disproportionate to the importance of the issue at stake.

Land Registry titles

Historical documents can be difficult to interpret and despite usually being prepared by a conveyancer they are sometimes wrong or refer to ‘rights’ which are not legally binding, or which could not possibly have been granted at the time.

These errors can be passed down the line to subsequent owners and when land is registered with the Land Registry, they find their way into the title and are then assumed to be guaranteed.

However, what might be shown in the title to the land with the apparent benefit of a right may not be repeated in the title to the land adversely affected by it.

This can lead to much confusion and give rise to a wider dispute, which may result in the court or property tribunal having to decide whether a right exists or not.

Even if there is no right-of-way mentioned in either registered title, there is still a possibility it could exist, either because it is an ‘overriding interest’ (a right which continues regardless of whether it is registered) or because it is based on long-use of someone’s land for the benefit of other land, called a ‘prescriptive right’.

These issues can be complicated to navigate, and registered titles may have to be altered to reflect the true legal position.

There are several key points to consider in right-of-way disputes:

1. Historical documents are the starting point – A lack of historical documents can be a real problem. If there is an entry in a registered title that says a particular right-of-way was created in a specific document and we cannot see that document, we cannot easily challenge it. Get together any documents you have relating to the property and study them carefully. If you do not understand them, we can provide you with professional legal advice.

By carefully reviewing the documents it may be possible to show that a right-of-way exists which is not shown in the registered titles to the land affected by it or, conversely, that a ‘purported’ right-of-way could never have been granted in the first place.

2. Altering the titles – Depending on what the documents reveal, there may be an error in one or both registered titles which needs to be altered with the Land Registry. An application for alteration of the Register may be contested. If it is, then the dispute may be referred to the property tribunal for determination.

3. A site visit – The parties to a right-of-way dispute are usually very familiar with the location of the track, where it leads from and to, how it relates to other land and how it is used. When we are first asked to provide advice about a right-of-way, one of the most important considerations is understanding how everything fits together on the ground. If we cannot get a good understanding of the area from plans and photographs, we are happy to come out and see the land for ourselves.

4. A ‘without prejudice’ meeting – Taking things a stage further from a site visit, we will sometimes attend a meeting on-site when the other party (and often their lawyer) are also present. This is an opportunity to explore whether a settlement can be reached, or at least to try to reduce the number of issues in dispute and find some ‘common ground’.

Meeting face-to-face can help to address misunderstandings and misconceptions between the parties and to look at the situation more pragmatically. Something that was not mentioned before might come up in a meeting that you did not realise was an issue, or you may discover that a particular issue is not as important to the other party as you had thought.

5. Mediation – If the parties cannot resolve the dispute between themselves, a mediator might be able to facilitate a settlement. Mediation should be considered in all cases before any court or tribunal proceedings are started. If it is not considered, the court or tribunal will usually ‘invite’ the parties to mediate before the case can progress.

At present there is no power to order the parties to mediate this type of dispute, but a strong signal that mediation should take place is ignored at your peril and there may be financial sanctions for parties who refuse to mediate without good reason. We are happy to support clients through the mediation process and attend with them if they wish.

There are lots of independent mediators and the parties will need to agree who to use and where and when the mediation will take place. The most common duration of a mediation is one day but they can be shorter or longer, depending on the complexity of the dispute. In land disputes they often take place on-site.

6. Deed of Easement – If there is any doubt as to whether the right-of-way exists or not, a new formal right could be granted in a Deed of Easement. This is also an opportunity for the parties to renegotiate the terms of a vague or outdated right and they may both benefit from the new terms, which can clearly set out the rights and obligations on both sides. The new Deed of Easement would be noted against the titles to both pieces of land so that there is less scope for dispute in the future.

7. Prescriptive rights – If there is doubt about whether a right-of-way exists or not and the owner of the track will not grant a new right, we will also consider whether a ‘prescriptive’ right-of-way has arisen. Very generally speaking, if a track has been used continuously, openly, without force and without the permission of the owner for more than 20 years at any point in time, the user can acquire a legal right to continue to do so, as it was used during that period and the right can be affirmed by the court or property tribunal and noted on the titles to the land benefitting from it and adversely affected by it.

When providing expert legal advice to our clients in property disputes there are various options that we can explore. We can also assist with the instruction of barristers, land surveyors and other experts when these are needed.

For more information on rights of way and rights of access disputes, contact Darren Higginson by email darren.higginson@coodes.co.uk or call 01726 874753.