Wealden Times | WT208 | June 2019 | Kitchen & Bathroom supplement inside

Legal
Crossing the Line
What happens when you find out that the boundaries of your property, and the way
you – or others – can access it aren’t quite as clear cut as you once thought?
Wealden Times talks to the legal experts to find out...
Can a Right of Way be removed? Kellie Darke
from Kingsfords Solicitors explains...
“There are two ways a right of way can be created:
The first, expressed right of way is that which is created
by deed, i.e. by a legal agreement between parties, one
agreeing to let another access their land for a purpose. Such
a deed should then be recorded against both parties’ titles.
The second way is by prescription. Such a right may not
necessarily be revealed on the deeds and comes about
only by the access being used regularly over a length of
time. Specifically, if you can prove you, and if necessary
any predecessors, have freely enjoyed access over someone
else’s land without hindrance, payment, licence, secrecy
or dispute for over 20 years then the law provides that
you may be able to claim a prescriptive easement over
that land and title which can be registered on it.
Removing either type of these rights of way, however, can
be difficult. If the right is by deed or prescription and is
registered on the title, the only way to remove them is by
mutual agreement; to obtain the consent of the party that
has the benefit of the right of way, i.e. if your neighbour
has a right to cross the rear of your garden to access for
example a pathway, they would then enter into a deed of
release with you. This deed would then be registered against
both titles showing the removal of the right of way.
You will not easily be able remove a right that is registered
on your title without such agreement, even if the right
has not been used for many years. It is important to
remember that rights of way do not automatically become
extinct even through lack of use. And they can, technically,
be revived at any time by those benefitting from them,
even if they have been blocked by a fence for years.
If you do wish to pursue a claim that a right of way
should be revoked due to lack of use, it is very difficult.
Certainly you must be able to demonstrate that the
purpose for the right of way no longer exists and you
will also need to prove that those benefitting from the
right of way no longer have any use for it and even then
there is no guarantee such a claim would be successful.
If the claim is for a prescriptive easement and is not
yet registered against your title you will only be able to
prevent its registration if you can provide evidence that
the easement has not been used for over 20 years.
As you may imagine, such matters can cause bitter
dispute between neighbours and it is very important that
when purchasing a property you do not rely entirely on
the information contained in the deeds. As your solicitor
is unlikely to personally inspect the property, you are also
expected to rely on your own inspections. Therefore, ensure
that you do check the property for any signs of a right of way
being exercised and do not be afraid to ask the seller if you
suspect there is one – and certainly report it to your solicitors
as soon as possible for them to make further investigations on
your behalf.”
kingsfords-solicitors.com
159 wealdentimes.co.uk