How to Resolve Rights of Way Disputes – A Practical Guide for Landowners

Introduction

Rights of way disputes can quickly turn a neighbourly relationship sour and lead to costly legal consequences. Whether it’s a private drive, a footpath through a field, or a shared alleyway, disagreements over access can be stressful and complex.

This article explores the nature of rights of way in England, how they are created and challenged, and what steps you can take to resolve disputes effectively.

What is a Right of Way?

A right of way is a type of easement that gives someone the legal right to cross or use land that they do not own. It is most commonly associated with access routes, For example, a footpath over a neighbour’s land or a private road that leads to multiple properties.

In legal terms, the land that benefits from the right is called the dominant tenement, and the land that bears the burden of the right is the servient tenement. The right typically passes with the land, not the individual, and can affect how land is used, developed, and valued.

How Are Rights of Way Created?

There are various ways Rights of Way can be created, as set out below:

What Are Common Types of Rights of Way Disputes?

One of the most frequent causes of conflict is disagreement over where exactly the right of way runs. If the path has changed over time or is not marked clearly in the title documents, both parties may have very different interpretations, leading to conflict.

There may also be an obstruction to, or a substantial interference with, a Right of Way. Property owners may attempt to block a right of way by putting up gates, fences, bollards, or other obstructions. Unless this is allowed by the terms of the right (e.g., a gate that must remain unlocked), such interference can give rise to legal action.

Another frequent issue is the nature and extent of use of the Right of Way. or instance, a footpath may not include the right to drive vehicles. Disputes also arise when usage increases dramatically, such as when farmland is developed into multiple residential plots, putting pressure on a previously quiet track.

Arguments also occur over who should maintain the right of way and what happens when heavy use damages the surface. While the dominant owner must generally use the right without causing unreasonable damage, the servient owner cannot force them to contribute to repairs unless the easement says so.

There could be an issue with unauthorised land use which can flare into a full-blown dispute. For example, use of a Right of Way that is not permitted by any granted easements or by law (e.g., your neighbour is permitted to use the footpath adjacent to their house for walking but instead drives their car on it).

How to Resolve a Right of Way Dispute

Talk to your neighbour. A polite but firm conversation or written note outlining your understanding of the right of way can sometimes clear up misunderstandings. Stay factual and avoid emotional or accusatory language.

Check your title documents for express rights of way and consult any historical deeds as necessary. If the right is not registered, you may need to consider whether a prescriptive easement can be claimed. A solicitor can assist in reviewing legal documents and identifying the scope of any rights.

The next step will be to gather evidence. If you’re asserting a prescriptive right, you’ll need to collect evidence showing continuous, uninterrupted use for at least 20 years. Useful sources include:

• Witness statements from long-standing neighbours or previous owners;
• Photographs and aerial images; and
• Utility bills or deliveries that relied on the access.

Disputes over Rights of Way are well-suited to alternative dispute resolution options, including mediation. A neutral third-party mediator can help both sides find a compromise, such as agreeing to signage, limited usage hours, or physical improvements.

Courts increasingly expect parties to explore Alternative Dispute Resolution (ADR) before resorting to litigation (which is very much a final resort), and failure to do so may impact costs burden/recovery.

Depending on the overarching dispute, there are various court actions which could assist, namely:

A Declaration

In many cases, what a claimant really needs is a clear statement from the court confirming that a right of way exists and outlining exactly how it can be used. While it’s possible to also claim compensation for any interference, the main goal is usually to gain certainty and reassurance about the continued ability to use the access in future.

Declarations are granted at the court’s discretion and are often seen as a practical way to clarify each party’s legal rights and responsibilities, without necessarily punishing the other side through an injunction or awarding damages.

An Injunction

One of the most serious issues a property owner can face in a rights of way dispute is the threat of an injunction. This typically arises when someone interferes with an easement, for example by building over a right of way without providing a suitable alternative route or offering compensation. An injunction can bring development work to an immediate halt, potentially resulting in significant financial loss.

Injunctions are discretionary remedies granted by the court on the basis of fairness, rather than as an automatic entitlement. They apply only to the parties involved in the legal proceedings and not to future owners of the property. However, breaching an injunction is a serious matter and may amount to contempt of court. That said, the court is unlikely to grant an injunction if it considers that financial compensation would be a fair and sufficient remedy.

If there has been a delay in bringing the claim, the court may take this into account and decide that granting an injunction would be unjust. However, delay alone is not usually enough to defeat a claim. The key factor is whether the delay has caused the defendant to act to their detriment. For example, by incurring costs or completing works in reliance on the claimant’s inaction. Each case will turn on its own facts and the overall fairness of the situation.

Damages

Damages for nuisance are intended to compensate a claimant for any real harm or inconvenience caused by the defendant’s actions. If the claimant hasn’t experienced any actual loss, they may still be awarded a small amount known as nominal damages, but nothing more.

Abatement

At common law, there are certain situations where someone is allowed to go onto another person’s land to stop a nuisance, this is known as abatement. It means that a person may have the right to enter the land and remove whatever is causing the problem.

However, it’s crucial to get legal advice before taking this kind of action, as doing so without proper guidance could worsen the dispute or lead to legal consequences.

Top Tips to Avoid Rights of Way Disputes

1. Always check rights of way before buying a property, including unregistered easements or historic usage.
2. Define and document any informal arrangements clearly, especially if you agree to allow a neighbour temporary access.
3. Avoid unilaterally changing the route of a right of way, even if it seems more practical. This can amount to interference.
4. Be consistent with usage to preserve any prescriptive rights. Allowing access one year but not the next may undermine a claim.
5. Don’t ignore signs or objections as they can legally prevent a prescriptive right from forming.

For property developers, Rights of Way are particularly important. A single private lane may not lawfully accommodate construction traffic or multiple dwellings. Therefore, property developers should ensure that they do the following:

• Investigate all existing easements carefully;
• Avoid intensifying usage beyond what’s allowed;
• Consider applying for a variation or release of rights with the landowner’s agreement; and
• Seek legal advice before obstructing or relocating access routes.

A blocked or disputed right of way can delay a development or lead to planning objections and claims from third parties.

Conclusion & How We Can Help

Rights of Way are fundamental to the use and enjoyment of land, although they can also spark long-running disputes. Whether you’re protecting access to your home, challenging a neighbour’s claim, or trying to navigate a path through prescriptive rights, legal clarity is essential. We’re here to help.

If you require help, we offer a no-cost, no-obligation 20-minute introductory call as a starting point or, in some cases, if you would just like some initial advice and guidance, we will instead offer a one-hour fixed fee appointment (charged from £250 plus VAT to £350 plus VAT* depending on the complexity of the issues and seniority of the fee earner).

Please email wewillhelp@jonathanlea.net providing us with any relevant information ensuring that any call we have is as productive as possible or call us on 01444 708 640. After this call, we can then email you a scope of work, fee estimate (or fixed fee quote if possible), and confirmation of any other points or information mentioned on the call.

* VAT is charged at 20%

📞 Contact us today to discuss whether we can help you to extend your lease.

 

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited. 

 

Image credit Lucie Hošová.