Private Right Of Way Disputes
You may have heard of private right of way and not really understand what it is. To understand private right of way we must first understand public right of way. Public right of way usually comes in the form of a footpath, bridleway or restricted or non-restricted byway which gives access to the public on foot or driving a vehicle to a particular place. Public right of way is very black and white as it is usually set out with clear borders that are identified by the local authorities.
Private rights of way are a little bit more confusing. As the boundaries are usually set by one or two private parties it is a lot harder to arbitrate disputes when it comes to private right of way. Private right of way is the right given to a group or and individual to access a certain piece of land. They can run alongside public rights of way or even cross them.
What is the ideal set up for private right of way?
Private right of way should be an agreement that is set up between the dominant and servant tenements. Paperwork can be drawn up to ensure both parties understand where they stand, but in an ideal world both parties will understand and agree on the following:
– The exact borders the private right of way runs from and to
– whether there are any time restrictions in force. This does not necessarily have to be time of day. This can also include certain days or times of the year.
– What route the right of way should follow. Even if both parties agree on the borders if the traffic is not following the correct route there can be grounds for a dispute to be raised.
– Who is responsible for the maintenance of the right of way.
What happens next?
It is rare that all of the terms of the private right of way are stated in the Deed of Grant. Separate paperwork can be drawn up if both parties agree but in some cases both parties do not agree to the others terms. Some disputes can be resolved by both parties agreeing to adhere to the generic rules of a private right of way. Each case is completely different, but the general rules for private right of way are:
– You are able to pass along the right of way as many times that you want. There should be no ‘cap’ put on the amount of times you can pass along the right of way, but most agree as a general rule that you must not linger while you are using it.
– If the agreed right of way is obstructed then you may divert along another route.
– A gate will never be considered an obstruction is the dominant tenement has the key to unlock the gate.
– If needs change the dominant party cannot expect the rules to be changed.
What are the different types of private right of way?
Private right of way usually describes the private right of way on foot and the private right of way when using a vehicle.Both types of private right of way are governed by the ‘general’ rules in the same way. It does not matter if you are driving or walking – things like being able to use a different route if there is an obstruction remain the same.
What does a private right of way on foot permit you to do?
– Pass and repass as many times as you need to on foot between the dominant tenement and the public highway or land.
– You are able to pass with or without load.
– You are able to pass on a bicycle or pushing a small barrow if required.
What does a vehicular private right of way permit you to do?
– Drive vehicle of permitted height and width along the carriageway that leads on to public land.
– Stop the vehicle for loading or unloading purposes if there is not a place to stop adjacent to the dominant land.
– Pull over to let another vehicle pass.
How to manage private right of way disputes?
Regardless of how friendly things start when the private right of way is initiated – there can sometimes be factors that mean disputes arise. Even if everyone agrees to the terms they can end up being very different practically to how they play out on paper. Unfortunately for both parties right of way disputes are a very grey area and depending on what is specified in the Deed of Grant there may not be anything contractual to back up what you set up among yourselves. Ensuring that disputes are settled quickly and efficiently is beneficial to both parties and there are things you can do to make the situation less stressful.
Maintain friendly relations
To avoid going down the route of costly legal actions try to maintain friendly relationship with the other party. The chances are they do not wish to be embroiled into a dispute either and it will help you resolve the situation amicably.
Don’t assume what has been done in the past is legally acceptable
One of the biggest flaws in human nature is following what the person before them did and assuming it is correct. Just because the private right of way has always been conducted in a certain way, it does not mean this way is legal. If you are not the dominant party and you have been abusing use of the private right of way, the other party will have every right to revoke access or revert back to the original plan. Do you homework before you dispute anything.
Seek legal advice
If it come to it you may need to seek advice from a professional. In the long run it will help you to solve the dispute more quickly which is beneficial if you really need to use the private right of way.