At Studio Charrette, we are often contacted by property owners and developers facing challenges around rights of way. Whether you’re being denied access to land you’ve used for years or you’re concerned about someone unlawfully crossing your property, these disputes can become deeply entrenched, highly emotional, and legally complex.
In this guide, we unpack the key causes of rights of way disputes, explore how the law treats different types of access rights, and outline the practical steps available for resolving conflicts.
What is a Right of Way?
A right-of-way is a legal entitlement allowing a person to pass through someone else’s land. This may be for pedestrian use, vehicular access, or both. Rights of way can be vital for accessing homes, farmland, garages, or development sites. Without clarity, they can quickly become flashpoints for dispute.
There are two primary ways that rights of way are legally established in the UK:
- Express grant: Where the right is clearly set out in the deeds or a formal legal agreement
- Prescriptive right: Where the right arises through long, uninterrupted, and unchallenged use over time (usually at least 20 years)
Each type of right has different legal implications and evidentiary requirements, which often become central in a dispute.
Common Causes of Rights of Way Disputes
Rights of way disputes typically arise in one of the following scenarios:
1. Blocking or Obstructing Access
The most frequent issue is when one party blocks an established right-of-way. This could involve:
- Locking a previously open gate
- Erecting fencing or barriers across an access track
- Parking vehicles to prevent passage
- Installing bollards or chains across shared drives
This type of obstruction often escalates quickly, especially when one party feels their legal rights are being ignored or deliberately undermined.
2. Disputes About Legal Basis
Another common scenario is where a right-of-way has been used informally for many years, but it is not mentioned in the deeds. This raises questions about whether a prescriptive right has been acquired by prolonged use. The party denying the right may argue it was only ever tolerated, not legally recognised.
Conversely, rights explicitly granted in historic title documents may not reflect current land use or layout, leading to confusion about where the right actually lies.
3. Change of Use or Intensity
Problems also arise when the nature of access changes. A right that was previously used for occasional foot traffic may come under strain if it is suddenly used for regular vehicular access, especially for commercial purposes. This can lead to arguments that the use has gone beyond the original scope or constitutes a nuisance or overburdening of the right.
4. Claims of Abandonment
In some cases, the landowner may argue that the right-of-way has not been used for many years and has therefore been abandoned. UK case law sets a high bar for this defence, but it remains a contentious point in many access disputes.
5. Legal Principles Governing Rights of Way
Understanding how the courts interpret rights of way is essential to resolving disputes fairly.
6. Rights Created by Deed
If the right is explicitly stated in the title register or an accompanying deed, the wording of that document will govern the terms of access. However, even here, issues can arise over interpretation, particularly with older documents or poorly drafted clauses.
7. Rights Acquired by Prescription
Under the common law doctrine of prescription, a right of way may be acquired where a person has:
- Used the path openly and without force
- Without the landowner’s explicit permission
- For at least 20 years continuously
This is known as a prescriptive easement and can become legally binding even if nothing was ever written down. The courts will assess evidence of historical use, witness statements, photographs, and any objections made (or not made) over time.
8. Obstruction and Interference
Case law has confirmed that even partial or occasional obstruction of a right of way can amount to unlawful interference. Gates, locks, or other barriers are only permitted where they do not substantially interfere with the exercise of the right to access.
For example, the courts have found that:
- A gate that must be constantly unlocked can still be unlawful if it creates unnecessary difficulty
- A bollard installed for security purposes may be acceptable if all right-of-way users have a key
- Temporary obstructions, such as parked vehicles, can still amount to actionable interference if they are persistent or avoidable
9. Abandonment of Rights
The bar for proving abandonment is high. Mere non-use is not enough. The courts require a clear intention to permanently relinquish the right, accompanied by prolonged periods of non-use. This is rarely established, but it remains a common argument in disputes.
10. Resolving Rights of Way Disputes
Disputes over access can be emotionally and financially draining. At Studio Charrette, we encourage clients to resolve such matters through clear communication and professional guidance rather than protracted legal battles.
There are four main approaches to resolving rights of way disputes:
1. Negotiation
Informal negotiation is often the best starting point for effective communication. Misunderstandings around legal rights, changes in property ownership, or evolving access needs can often be clarified through open conversation and evidence exchange. A letter from a planning consultant or legal adviser can help reset the tone.
2. Mediation
If informal talks fail, mediation can be a cost-effective and constructive next step. A trained, independent mediator helps both parties explore solutions, clarify facts, and agree on a workable compromise. This is often much faster and less adversarial than going to court.
3. Legal Proceedings
Where rights are clearly established and one party is refusing to comply, legal action may be necessary. Common remedies include:
- Injunctions to remove barriers or prevent further obstruction
- Court declarations to formally establish the existence and route of a right-of-way
- Damages where a party has suffered quantifiable loss due to blocked access
Our legal partners can guide clients through the process and ensure evidence is carefully prepared in line with established case law.
4. Deeds of Easement or Variation
Sometimes, the most pragmatic solution is to formalise the right of way through a new legal deed. This can clarify the terms of access, set out obligations, and prevent future disputes. A Deed of Easement or variation agreement may also be used to realign the route if all parties consent.
The Studio Charrette Approach
At Studio Charrette, we specialise in navigating complex planning and property rights issues with professionalism and clarity. Whether you’re defending access rights, addressing objections from neighbours, or considering a property purchase with unclear title documents, our team can help.
We work closely with legal experts, land surveyors, and mediators to offer:
- Clear interpretation of title documents and historic rights
- Strategic advice on negotiation or enforcement
- Preparation of evidence for court or mediation
- Support with land registry updates or formal deeds
- Practical resolution plans that align with planning policy and long-term development goals
Conclusion
Rights of way disputes are rarely just about land. They are about history, habits, relationships, and future plans. Whether you are seeking to assert your access rights or protect your property from unauthorised use, it is essential to approach the matter with clear information and professional support.
If you are facing a dispute or uncertainty over rights of way, Studio Charrette is here to assist. Contact our team today for a consultation.