The value of a piece of land can often depend on the rights attached to it. An area of land could be in a stunning location or ripe for development but if there are no legal rights to connect to services or to gain access to the land, its value will be significantly decreased. Accordingly disputes about access to land are not uncommon.
The best way to ensure that a right of way is properly dealt with is to ensure that it is granted in a Deed that is signed by the owners of the land over which the right is granted and by the owners of the land which benefits from the right. Unsurprisingly many cases which reach court do not have the clarity of rights granted by Deed.
The Law of Property Act 1925 does give property owners requiring a right of way some comfort in that in certain circumstances the law will recognise that in the absence of an express grant of rights in the Deed, a right of way may have come into existence by operation of law.
A recent Court of Appeal case affirmed that the claimants in the case had acquired a right of way by virtue of the operation of the 1925 Act although legal commentators have doubted some of the reasoning.
If you require access over someone's land to get to your property, even if only a very small strip of land, it may be best not to rely on an informal arrangement with your neighbour. When a party is selling a piece of land no lawyer wishes to be considering court proceedings to establish that the land being sold benefits from necessary rights of way.
It is preferable to ensure that the nature and extent of the right of way is properly recorded in a Deed of Easement to give clarity to all parties.
Unfortunately however the matter is not as simple as asking your neighbour for confirmation of a right of access over their land. If someone has exercised a right of way over a piece of land for over 20 years it may be possible to acquire a right of way by long user (known as 'prescription'). It may be necessary to affirm the right claimed by a declaration and insurance may be needed to enable you to sell the property. You will not be able to obtain such insurance if you speak to anyone about the issue.
It is therefore very important to ensure that in these circumstances you do not speak to anyone including your neighbour without speaking to your solicitor first.
This is an area of great complexity. To discuss this or similar property related issues contact us.