Surrey Homes | SH56 | June 2019 | Kitchen & Bathroom supplement inside


The lifestyle magazine for Surrey - Inspirational Interiors, Fabulous Fashion, Delicious Dishes


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?

Surrey Homes 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.”


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