Boundary Disputes - Right Of Way

Disagreements over rights of way are a common source of boundary dispute. Whether it is relating to a public or private right of way, you need to know what your entitlements are and what action you should take. Otherwise you could find yourself in a long and bitter feud.

Public Right of Way.

Public rights of way are deemed the Queen's highways, meaning anyone can legally use them. Some will be accessible only by foot, while others may be bridleways or byways open to vehicles. Generally the task of maintaining a public right of way will fall to the local authorities, but if the path traverses private property then landowners and occupiers must also take responsibility for its upkeep. For example, if a right of way passes through a farm, measures must be taken by the landowner to ensure factors such as crops or machinery do not block the way.

A public right of way can be established in one of three ways:-

* Express dedication - whereby the landowner given the public the right to use their land;

* Presumed dedication - whereby the public has always used the right of way;

* Deemed dedication - whereby a right of way have been used for 20 years or more.

Private Right of Way.

Private rights of way are not legally protected highways, but are instead part of a parcel of land that is privately owned. Private rights of way therefore allow one party the right enjoy another's land - known legally as an 'easement'.

Easements relating to private rights of way involve a relationship between the 'servient tenement' (who owns the land) and the 'dominant tenement' (who has the right to pass over the land on the servient tenement). For example, if a dominant tenement does not adjoin to a public highway, it will be necessary for residents and visitors to gain access by crossing the land of neighbouring servient tenement.

A private right of way can be established in one of two ways:-

* Express Grant.

A landowner may give the dominant tenement permission to use their land as a private right of way. This may be for a particular purpose - for example, to gain access to and from their property.

* Prescription.

The Prescription Act 1832 states that if party has enjoyed the right over the land of another 'openly and without permission' for 20 years or more then the right is automatically granted. It cannot then be defeated.

Disputes over Rights of Way.

Disputes regarding public rights of way often arise because there is a disagreement as to where the path is situated. Although all public rights of way are shown on Ordnance maps, the exact details of the boundary may be difficult to pinpoint. Therefore a landowner may state a public path does not pass over his land. On the other hand, users of the countryside - such as ramblers and horse-riders - can claim their legal entitlement use the right of way is being obstructed.

Similarly, there may be some confusion as to the exact nature of a private right of way. While these are usually laid out in the Title Deeds, which are recorded with the Land Registry, disputes can still arise as to where the boundary lies. Furthermore, the owner of the servient tenement may feel the private right of way is being excessively used, or has fallen into disrepair (the responsibility of the dominant tenement). It is also not unusual for a new servient tenement to want to revoke a private right of way, as they were not aware of its existence when the property was purchased.

If you are a dispute regarding rights of way, speak to a solicitor to discuss your position. A lawyer specialising in boundary disputes will be able to advise you on your rights, and guide you through the best possible course of action. Contact Us for a FREE Case Review - 954-766-4271 or visit http://cuenantlaw.com