Many properties up and down the country can only be accessed by vehicle (and sometimes on foot) by driving across your neighbour’s land.

In order to be able to lawfully cross your neighbour’s land, you must have a right of way (in legal parlance, an “easement”).

Types of Easement

Easements can be created expressly (i.e. in writing between the persons who need the use of the easement to access their land and the landowner across whose land the right of way passes), or by what is known as prescription.

Express easements are to be preferred as they define absolutely the right to cross someone else’s land, in what manner, and by what medium (eg. on foot, with vehicles etc). Prescriptive easements are more problematic: if the landowner across whose land the prescriptive easement passes suddenly objects to the use of the easement, then the persons using the right will need to find evidence to show that they (and/or their predecessors) have, in general terms, enjoyed an uninterrupted right across that land for a period of at least 20 years.

Easements in practice

In a recent case with which we had some involvement, a family bought a large farmhouse and equestrian facility. To get to their property, this family had to use a track which crossed the land of a neighbouring farmer. About three years after the family bought the property, the farmer suddenly started putting up a series of gates at intervals across the track. Over a period of about a year, he installed seven gates along the 500 metre track. The gates were not locked, but the family members, and their visitors, nonetheless had to get out of their cars to open and shut each gate as they proceeded along the track. This meant that the usual one minute car journey along the track to their property was now taking almost 10 minutes.

The family had a right of action against the farmer, and had the ability to apply to court for an injunction to compel the farmer to remove the gates (or at least some of them), but they faced a number of hurdles.

First, they did not have an express right of way, only a prescriptive one. Therefore, to get past first base, they first had to prove continued use of the track both on foot and in a vehicle for the benefit of their property for a continuous period of at least 20 years. This meant going back to the previous owners and asking them to give evidence that they too had enjoyed uninterrupted rights of access across the farmer’s land during the preceding 17 years. This was achieved, but was not an easy thing: as you might expect, having moved out three years ago, the previous owners didn’t particularly want to spend their time speaking to solicitors, preparing witness statements and having to go to court to give evidence.

Second, having established 20 years of continuous use, the family had to show that the recently installed gates constituted a “substantial interference” with their use of the track. To be deemed ‘substantial interference’ and therefore actionable, the interference does not have to be so severe as to amount to a total destruction of the right of way, but the interference should have more than a ‘trivial impact’ on the user. In other words, the family had to convince the court that the gates prevented them from using the track as conveniently (or, at least, as substantially conveniently) as before.

In the event, the family was successful against the farmer and the farmer had to remove the gates and pay the majority of the family’s legal costs. However, this was at substantial emotional cost to the family as a result of the two years of litigation. The farmer might well have got away with it if, say, he’d only installed one or two unlocked gates along the length of the track. The farmer might then have been able to argue that the interference with the right of way was only minor and did not cause a “substantial” interference.

The moral of the story

The moral of the story for buyers is this: if you’re buying a property, always use a solicitor. Do this even if you’re a cash buyer and you don’t need a mortgage. Make sure your solicitors fully check out the extent of the right of way and whether it is an express, or a prescriptive, right. Make sure your solicitors ask all the right questions and get all the right answers. If the right is merely prescriptive and you don’t get satisfactory answers in writing from the sellers as to how long they have used and enjoyed the right of way, and the manner of use, then think very hard before you proceed with your purchase. Quite apart from falling into dispute with your neighbours if they object to you driving or walking across their land, a landlocked property (or one where there has been a dispute over access) is likely to be worth substantially less than what you paid for it and may be virtually worthless in the most extreme cases. Who’d buy such a property?

The moral of the story for landowners across whose land a right of way to a neighbouring property passes is that you might not like your neighbours; indeed you may detest them. But think very carefully, and take professional advice, before you start trying to obstruct their passage across your land. Even if they don’t have an express (written) right of way, they may have a prescriptive right if they can evidence 20 years or more of continuous use. If you block or obstruct their access, it may come back to bite you and you may be faced with a very large legal bill if they take you to court and win. The court system is clogged up with cases such as these. And, after all that, you may have to live next to them for many years to come which is a bitter pill for even the most sanguine person to swallow.

For further information relating to the points raised in this article, please contact Hayden Glynn or a member of the Property Litigation Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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