Rights of way disputes: When long-established access rights are suddenly challenged

Few property disputes catch homeowners off guard as much as those involving access rights. A right of way used without question for many years can still be legally vulnerable if it was never formally granted. A challenge will often come from a new neighbour or property developer who has done their due diligence and knows exactly what the Land Registry title does and does not say. When that challenge arrives, the consequences tend to be immediate: a blocked route to a garage, a landlocked plot, a sale that stalls because the seller cannot prove the existence of a right of access. Right of way disputes are not niche legal technicalities. They are practical crises with real financial and emotional consequences, and the steps taken in the early stages can make the difference between a positive and a negative outcome. 

How access rights come into existence 

Some rights of way are expressly recorded in the deeds (unregistered land) or title register (registered land). When the land changes hands, the right passes with it. A property owner cannot unilaterally decide that an established right no longer suits them, whether they are the party benefiting from it or the party whose land is burdened by it. 

Other rights arise from long use rather than by deed or contract. Under English law, someone who has used a right of way openly and continuously for at least 20 years, without permission, without force, and without secrecy, may be able to claim what is known as a prescriptive easement. Many homeowners assume that long use automatically creates a legal right. In practice, these claims are frequently contested. Questions can arise over whether the use was genuinely without permission, whether the use was sufficiently continuous, and whether the current use is the same as the historical use. Establishing a prescriptive easement is rarely straightforward. Defending a claim for one requires the same careful approach. 

A right of way can also arise by necessity, or automatically by ‘operation of law’. Where a property would be effectively landlocked without access, or where a right is so obviously necessary to the reasonable use of land which is being sold out of a larger plot, a court may find that an easement exists even though it was never formally agreed. Implied easements are fact-sensitive and frequently contested, but they represent an important protection for owners whose access position is not clearly documented. 

When disputes arise 

The most common flashpoint is a change of ownership. A property is sold, the incoming owner takes a different view of an existing arrangement, and what was once tolerated becomes the subject of a formal challenge. Boundary disputes and access disputes often become entangled, each compounding the other. 

Developers represent a distinct and increasingly significant source of conflict, particularly across Cornwall and the Southwest where pressure on land continues to intensify. A route that caused no practical difficulty for decades can become commercially critical once planning permission or a redevelopment scheme enters the picture. Landowners in these situations often find themselves under pressure to accept a rerouted access, a narrower right, or formal restrictions designed to accommodate a scheme, frequently at short notice.   Historical informal arrangements offer no protection once a developer’s solicitors are involved. The value attributed to an access right can also increase considerably once development land values are in play, changing the dynamics of any negotiation significantly. 

What are your options?  

The starting point is establishing what rights already exist. That means examining the title deeds and the registered titles for both parcels of land at the Land Registry. For unregistered land the position can be considerably more complex, as no historical documents may be available, or the other party may not be prepared to provide copies of their deeds. 

Where a prescriptive right is being claimed or defended, evidence is key. Witness statements, photographs, historic Ordnance Survey maps, invoices or records tied to use of the access over the relevant period can all be crucial. Building that evidence base early, before memories fade or documents disappear, is often the difference between a strong case and a weak one. 

Negotiation and mediation resolve a significant proportion of these disputes once both sides properly understand the legal position. A formally drafted deed of easement, agreed between the parties and registered against the title, can put an informal arrangement onto a permanent legal footing and bring a dispute to a clean conclusion. Where appropriate, a payment reflecting the value of the access to one party and the burden it places on the other can help reach a settlement that works for everyone. 

Where agreement proves impossible, the courts have broad powers to determine whether an easement exists, enforce it, prevent interference, or award damages. Injunctions can be sought to halt ongoing obstruction while proceedings continue, which can be essential when the practical consequences of lost access are immediate. 

Why early advice makes the difference 

Rights of way disputes are rarely just technical property issues. They affect how people access and enjoy their homes and land, their relationships with neighbours, and in many cases the value and saleability of the property itself. An unresolved dispute can adversely affect a property for years, complicate a future sale at the worst possible moment, or harden into protracted litigation that earlier intervention might have avoided entirely. 

The opportunity to protect a position, preserve evidence, or reach a practical resolution is almost always greatest at the outset. Once positions become entrenched, options narrow and costs rise. If you are buying a property or land and access arrangements are unclear, with routes not reflected in the deeds, shared driveways without formal agreements, or tracks used informally by others, those questions deserve answers before exchange of contracts rather than after completion. 

If you are already in a dispute, or sense one developing, early specialist advice keeps more doors open. Coodes’ personal disputes team advises homeowners, landowners, and businesses on all aspects of easements and rights of way, from negotiating practical resolutions through to court proceedings where necessary. Please get in touch with our team to arrange a conversation.