Disagreements over rights of way can become bitter and entrenched if not dealt with promptly and efficiently. We take a look at how rights of way arise and how to resolve a dispute before it escalates.
Right of way disputes can arise for a number of reasons. Examples include:
- Disagreements over where the right of way is
- Blocking a right of way
- Parking disagreements involving a right of way
- Boundary disagreements involving a right of way
- Disputes over the maintenance of a right of way
- Excessive usage of a right of way
How is a right of way created?
Rights of way can be created in three main ways:
- Express right of way
- Implied grant of a right of way
- Right of way arising by prescription
Express right of way
An express right of way will often be set out in the title deeds and usually registered against the legal title of the property over which it is exercised. This type of right of way is usually created when someone sells part of their land but wishes to retain a right of way over the area being sold.
An express right of way can also be created by law or if someone leaves land to different people in their Will and grants one or both of them rights of way over the other’s land.
Implied right of way
In some cases, a right of way may be implied, even though it has not been put in writing. For example, if a piece of land is sold to someone and the only way to access it is over the seller’s adjacent land, then a right of way is implied. Without the right of way, the purchaser would have no way to use the land they have bought.
Prescriptive right of way
If a right of way has been used without interruption for twenty years or more, there will usually be a prescriptive right of way, provided that the usage has been open and not hidden.
What to do in a right of way dispute
If you become involved in a dispute over a right of way, you are strongly advised to speak to a solicitor as soon as possible. The best way to prevent a dispute from deteriorating is to deal with it promptly. Your solicitor will work with you to establish exactly what the situation is, how the right of way has been used historically, how it has been established, if it has, and where you believe the route of it to be.
Your solicitor will also be able to discuss the strengths and weaknesses of your case and the options open to you. They will negotiate on your behalf where necessary to try and find a solution. Often, a formal solicitor’s letter will encourage those involved to work to resolve matters.
Where negotiation does not work, the next step could be to try an alternative method of dispute resolution such as mediation or arbitration. These tend to be quicker and more flexible than going to court, as well as being more cost-effective.
With mediation, a neutral mediator will explore how the matter could be resolved and help you and the other party to try and find a solution between you. The outcome will be agreed upon by you both.
Arbitration can be thought of as a private type of court. An arbitrator will hear your case and make a binding judgment.
If necessary, you could take your case to court, although this is usually a last resort and it is often possible to resolve matters before they reach this stage.
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