When buying freehold premises or taking on a lease you will need to ensure that you have sufficient rights of way in order to gain access to and from those premises. Lancashire lawyer Jonathan Durkin at Prosperity Law Liverpool and Manchester advises on the rights that will be required where the roads and access ways to and from premises do not form part of the premises themselves.
People often assume that if there is a road or access way to a property, there must be a corresponding right given to the owners or occupiers of that property to use the road or access way. However, this is not always the case.
If the road has been adopted by the local authority and is maintainable at public expense, then a right of way will exist. If, on the other hand, the road is unadopted or otherwise private, there may be no legal right of access.
Establishing your rights of access
In order to establish whether legal rights of access exist, you need to investigate the title to the premises. This will show you whether any express rights of access have been granted. If title to the premises is registered with the Land Registry, rights of access will be recorded in the registered title documents. If title to the property is unregistered, such rights will usually be recorded in a separate deed, such as a deed of grant or a deed of easement. In so far as leasehold premises are concerned, rights of access may also be contained in the lease.
If an investigation of the title document does not reveal the grant of any express rights – or, alternatively, shows that any express rights granted are inadequate – the possibility that the premises may benefit from what are known as ‘prescriptive rights’ needs to be investigated. Prescriptive rights may arise where a previous owner or occupier of the premises has used the road or access way in question for 20 years or more without challenge. Such rights can be difficult to establish and often require time-consuming and costly investigation; however, where it is clear that prescriptive rights exist, it is worth spending the time and money evidencing them with a view to have them registered, particularly if this is the only way in which rights of access to and from the premises can be secured.
Changing rights of way
Where premises benefit from a right of way, this right cannot be unilaterally altered unless the person who originally granted the right, such as your landlord or the freehold owner of the access road, has reserved a right to do so. If such a right has been reserved to your landlord, this would be clearly set out in the lease. In all other cases it should be set out in the registered title or the relevant deed of grant or deed of easement.
The reservation of a right to change a right of way would allow your landlord or the owner of the access way to alter the right by giving you notice of the proposed change. A well drafted clause should make clear that, in the event of this happening, any alteration to the right of way must be made at the landlord or owner’s cost and the new route chosen should be as convenient to you as the original.
In the absence of a reserved right to make a change, the only other way a right of way can be changed is if you consent to it. If this was to happen, you would evidence your consent in a deed of variation of the original right, or in a deed of release and re-grant providing for a new right of way.
If you did not wish to consent to the alteration then, unless the alteration could be classed as necessary to achieve an object of substantial public and local importance – such as improved road safety – there is nothing your landlord or the owner of the land can do to insist on the alteration being made.
Interference with a right of way
If, in an attempt to persuade you to agree to a proposed alteration, your landlord or the owner of the access way decides to try to make life difficult by restricting your current rights of access, it is possible for you to take action to prevent this. However, for interference with a right of way to be actionable, it must be shown that the interference is substantial in nature. This does not mean that the interference must completely prevent you from using the right of way that has been granted; what it means is that trivial acts of interference will not be sufficient.
For example, if your landlord were to construct a gateway across an access road that you used, it is possible that this could amount to interference. However, each case will be decided on its facts, and in this scenario it may be considered that if the access road is used by you infrequently, the installation of an unlocked gate would not be a substantial interference with your right.
If the circumstances justify it, you may be able to obtain an injunction to prevent the alteration being carried out. You may also be able to obtain a declaration from the court, reaffirming your right to continue using the existing right of way and awarding you damages for any inconvenience caused.
This is a complicated area of law on which the importance of early advice cannot be overstated. The last thing you want to do is complete on your purchase or lease and then discover that you have no rights of access or the rights that exist are insufficient or are in the process of being altered in a detrimental way. At Mooney Everett Solicitors our specialist property and dispute resolution lawyers are experienced in dealing with rights of way problems and would be happy to advise you.
For a confidential discussion on rights of way issues, please contact Jonathan Durkin on 0151 958 0057 or email Jonathan@ProsperityLaw.com.