Can I Change A Right Of Way Over My Property?
Posted on 26th May 2020
Now many may not see the issue with neighbours having a right of access across the garden of their property, but this potential property purchase included a right of access, for their future neighbours and their vehicles through, what would be our Clients garden and patio area.
So, the Property Law Client asked: could they change the right of way?
This type question is asked fairly often. With this in mind our Property Lawyers in Lancaster decided to share the advice given, for others who may find themselves in a similar situation.
To start, what is a Right of Way?
A right of way is a type easement, more information about easements here. A right of way is usually granted when a large piece of land is divided into smaller plots and one of the smaller pieces of land needs access over another piece of land to reach a main road. In most cases we are looking at development plots and the need for access to a main road is taken in to account so the right of way does not cause any issues and all parties are happy with the arrangements.
The right of way will pass with the piece of land if that land is ever sold, so we then have to look at what happens if a party is not happy with the arrangements.
Can I change a right of way?
Usually a right of way, contained within a deed, will remain in place, exactly as it is written, even where the land or property has changed hands.
It is possible, however, to extinguish a right of way because it has been abandoned but it is incredibly difficult to prove abandonment. Indeed the case of Benn v Hardinge (1992) the Court of Appeal held the that failure to use the right for 175 years was not enough on its own to indicate an intention to abandon the right. The right is considered abandoned where it can be shown that the original character of the dominant land has been changed to such an extent that the right of way has become unnecessary or impossible to exercise.
In some instances, a right of way can be varied if the person who has the benefit of it (i.e. the neighbours) agree to the variation of the right of way.
How do you vary a right of way?
Our Property Law Solicitors can assist by drafting a Deed of Variation, the person with the benefit of the right of way would need to agree to the variation and sign the deed. The downside to this is that the person who benefits from the right (i.e. the neighbour) does not have to agree to the variation and if they do not agree there is no way to force them to vary the right. In some instances, your neighbour may want a payment to vary the right and you may need to negotiate some kind of financial incentive for your neighbours to agree to the variation.
What if someone blocks my right of way?
You may be the subject of a complaint from a neighbour because you are interfering with their use of a right of way. Such issue can only be settled by the Court and the Court would have to decide whether a blocked right of way amounted to a “substantial interference”. The Court would look at all of the circumstances individual to your case, such as whether the right of way can still be used or if it is now more inconvenient for the person to use the right of way rather than some other access.
In summary, your neighbours may be prepared to vary the right of way, but they don’t have to. If you proceed to interfere with the right of way regardless then your current or future neighbours may raise the issue and ultimately only the Court could decide for certain as to whether the right of way has been extinguished.
MG Legal - Your Local Solicitors
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