Expert legal advice on private and public rights of way — establishing, protecting and challenging access rights, obstruction claims, prescriptive acquisition and extinguishment.
Rights of Way: Legal Advice for Landowners & Property Owners
A right of way is a legal right to pass over another person's land. Rights of way are among the most frequently disputed property rights in England and Wales — whether the dispute is between neighbours over a shared driveway, a landowner and the public over a footpath, or a developer who needs access across land they do not own. Legal Merchant's specialist property solicitors advise on the full spectrum of rights of way issues.
Rights of Way Can Be Created, Extended — and Lost. A right of way that has existed for 20 years may be extinguished if it is not used — or a new right may be acquired through 20 years of uninterrupted use. Our solicitors advise on whether a right of way exists, what its precise scope is, and how to protect or challenge it.
Types of Right of Way
Private Right of Way (Easement)
A right benefiting a specific piece of land (the dominant tenement) to pass over a neighbouring piece of land (the servient tenement). Can be on foot, by vehicle, or both. Created expressly, by implication or prescription. Binding on successors in title.
Public Footpath / Bridleway
A right exercisable by all members of the public to pass over land on foot (footpath) or on horseback (bridleway). Shown on the Definitive Map maintained by the local highway authority. Obstruction is a criminal offence.
Vehicular Right of Way
A right to pass over land by vehicle — typically a private right of way serving a property with no direct access to the public highway. Scope is determined by the grant or prescriptive use — e.g., whether it permits heavy goods vehicles.
Prescriptive Right of Way
A right of way acquired through long use — at least 20 years of continuous, open and as of right use without force, secrecy or permission. Can be claimed under the doctrine of lost modern grant or under the Prescription Act 1832.
Express Grant or Reservation
A right of way created by an express clause in a deed of conveyance or transfer — either granted to a buyer or reserved for a seller. The precise terms of the grant determine the scope and extent of the right.
Implied Right of Way
A right implied into a conveyance by operation of law — for example, where land is sold that has no other means of access (necessity), or where the parties' common intention requires an access right even though none is expressly granted.
Establishing a Prescriptive Right of Way
To establish a prescriptive right of way, the claimant must show that their use (or that of their predecessors in title) was:
As of right — without force (nec vi), without secrecy (nec clam), and without permission (nec precario). If the landowner gave permission for the use, no prescriptive right can arise.
Continuous — uninterrupted use throughout the prescriptive period. The degree of continuity required depends on the nature of the right — a right of way used only occasionally (e.g., seasonal agricultural access) may still be "continuous" if that is consistent with the purpose of the right.
For at least 20 years — under the doctrine of lost modern grant, the courts presume (fictitiously) that a right was expressly granted and the deed of grant was subsequently lost. Under the Prescription Act 1832, 20 years' use raises a presumption that a right exists.
In the capacity of someone who could acquire the right — the user must be using the land in a way that is consistent with the acquisition of an easement (e.g., as owner of the dominant land, not merely as a member of the public).
Evidence of prescriptive use is typically gathered from witness statements, historical maps, photographs, planning records, utility connection records, and the claimant's own records of use.
Obstruction of Rights of Way
Where a private right of way is obstructed — whether by a gate, fence, parked vehicle, building, or any other physical obstruction — the person entitled to the right has a cause of action in nuisance and can seek:
Injunction — an order requiring the obstruction to be removed and preventing further interference. Emergency interim injunctions can be obtained quickly where urgent access is required.
Damages — compensation for loss caused by the obstruction (e.g., inability to use the property as intended, additional costs of access by an alternative route).
Self-help — in limited circumstances, a person entitled to a right of way can remove an obstruction themselves ("abatement of nuisance"). This remedy must be exercised with care and proportionality — abatement should not be used where it would cause disproportionate damage or where there is likely to be a breach of the peace.
For public rights of way, obstruction is a criminal offence under the Highways Act 1980 (section 137). The local highway authority has powers to enforce and can require obstructions to be removed. Our solicitors advise on both civil enforcement by affected landowners and the highway authority's enforcement powers.
Extent and Scope of a Right of Way
Even where the existence of a right of way is agreed, disputes frequently arise about its precise scope — particularly as properties change hands and uses evolve. Common scope disputes include:
Whether the right extends to vehicular as well as pedestrian use
Whether a right granted for domestic use extends to commercial or development use
Whether the right can be used for a significantly increased burden of traffic — e.g., following residential development on the dominant land
The precise route of the right of way — whether it can be deviated from and on whose terms
Whether the right includes a right to park on the servient land
Our solicitors interpret the original grant, examine historical use, and advise on the legal scope of the right — including whether any proposed change in use of the dominant land would "overload" the right and constitute a trespass on the servient land.
Extinguishing a Right of Way
A right of way can be extinguished in several ways:
Abandonment — the right is abandoned where both the dominant and servient owners intend that it should no longer exist. This requires clear evidence of intention to abandon — mere non-use, even for many years, is not sufficient.
Unity of ownership and possession — if the dominant and servient land come into common ownership and possession, the right merges and is extinguished.
Express release — the dominant owner releases the right by deed.
Statute — certain statutes allow rights of way to be extinguished by order (e.g., Planning Act powers for development; Highways Act 1980 for public paths).
Prescriptive extinguishment — not available; mere non-use cannot extinguish an easement without evidence of intention to abandon.
Frequently Asked Questions
Possibly yes — if you have used the driveway for 20 or more years as of right (without force, secrecy or permission), you may have acquired a prescriptive right of way. You should also check your title deeds, which may expressly grant a right of way. If the right exists, your neighbour's blockage is an interference with your easement and you can seek an injunction and damages. Our solicitors can review your title and advise on the strength of any prescriptive claim before taking action.
At common law, no — the servient owner cannot unilaterally deviate the route of an expressly granted right of way. However, section 119 of the Town and Country Planning Act 1990 allows a local planning authority to divert a public right of way in connection with development. For private rights of way, the servient owner and dominant owner can agree to a variation by deed. Our solicitors advise on both the landowner's obligation to maintain the path in its original route and the procedure for agreeing a variation if both parties consent.
This is a common dispute in development scenarios. The courts interpret the scope of a right of way by reference to the purpose for which it was granted and the reasonable contemplation of the parties at the time of the grant. A right granted "for agricultural purposes" would not automatically extend to the substantially greater burden of use associated with a residential development of many dwellings. However, a more general grant may be interpreted more broadly. Each case turns on the precise words of the grant and the circumstances at the time. Our solicitors advise developers and servient owners on these scope questions before development commences.