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What are private rights of way over land

View profile for Elizabeth Simpson
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Often, access to agricultural land requires a right of way over someone else’s neighbouring land or a private road/track which has not been adopted by the Highways Authority. A right of way is an easement. This is a right for one landowner to use someone else’s land for a specific purpose.

In many cases, a right of way is created expressly by written agreement between the two landowners. Often, details of where the right of way runs from and to and its exact route are set out in a Deed. You should be able to find a copy of this document within the deeds to your property. However, there can be times when there is not an express right included within your title deeds. In these circumstances, do not panic. You have several options.

If you have been using a certain route to access your land for some time, it could be that a right has been acquired through length of use. This is known as a prescriptive easement and is founded on the presumption that if the right has been enjoyed for over two decades, the neighbouring landowner may have lost their right to object.  This is assessed on a case by case basis and you should take professional advice from your solicitors to determine whether you have sufficient evidence to establish a prescriptive right of way.

If you are selling land which does not directly front on to a public highway and relies upon a private right of way, we can help. If applicable and appropriate, we can prepare a statutory declaration or statement of truth for you to sign which sets out when, how and how often the right of way has been used, provided that your use of the access satisfies the specific requirements, which we can discuss with you in detail while preparing your declaration. Either you or your buyer will be able to use this evidence to apply for the right registered formally at the Land Registry.

Alternatively, if a prescriptive easement cannot be claimed, for example if you do not have sufficient evidence or you have not exercised the right of way for at least 20 years, then we can look at other options to help you.

There is the option to speak with the neighbouring landowner to negotiate a right of access over their land. You would enter into a Deed of Easement to formalise the agreement. The neighbouring landowner may request a sum of money in exchange for the right. It is important to note, though, that if the neighbouring landowner is not agreeable to granting to right, indemnity insurance (discussed in the next paragraph) will no longer be an option.

Another possible option would be legal indemnity insurance policy. This does not provide a legal right of access but may provide financial compensation if access to the land is denied or blocked. This approach is particularly useful if you do not know who owns the land over which you have access.  If you are considering indemnity insurance it is vital that you do not speak to or notify third parties and specifically the landowner themselves as to do so would prevent you from obtaining cover and it would also invalidate any existing policy.

If you are selling your land and you think that you have a right of way or access over someone else’s land, please get in touch with our Agricultural Team on 01653 600070 here at Crombie Wilkinson Solicitors and we will be happy to discuss your available options and what you can do to protect your right.