What is a right of way over my property, and can I stop it?

The word covers two completely different things and the remedies are unrelated. A private right belongs to a particular piece of land and is a matter between neighbours and the title deeds. A public right belongs to everybody and is a matter for the highway authority. Working out which you are dealing with is the first and most important step, because people frequently fight the wrong battle.

Step by step

1. Check the title register for a private right.Easements appear in the property register where your land has the benefit of one, and in the charges register where your land is burdened by one. Download the register from HM Land Registry and read both.
2. Read the wording of the grant.The extent of a right of way is defined by the words that created it: on foot only, with vehicles, at all times or at limited times, for particular purposes. Most disputes are about extent rather than about existence.
3. Check the council's definitive map for a public right.Public footpaths, bridleways, restricted byways and byways are recorded on the definitive map and statement, which the council maintains and which can be inspected. A public right does not appear on your title.
4. Understand what you cannot do to a private right.You cannot obstruct it, and you generally cannot unilaterally move it. You can usually put up a gate provided it does not substantially interfere with the right — and 'substantially interfere' is the test that decides these disputes.
5. Understand who maintains it.In the absence of express wording the owner of the land generally has no obligation to maintain a private right of way, and the person with the benefit has a right to repair it. Express maintenance and contribution clauses are common and override the default.
6. Know what a public right means for you.You cannot obstruct a public right of way and obstructing one is an offence. Diversion or extinguishment is possible but only through a formal order made by the council, with objection rights for the public.
7. Watch for rights acquired by long use.A private right can be acquired by twenty years of use as of right — without force, secrecy or permission. A public right can be established by twenty years of public use. That is why owners give written permission for informal use rather than saying nothing.
8. Deal with it in a sale properly.You must answer the seller's property information form accurately about rights over the property. Concealing a known right can support a claim after completion.
9. Negotiate before litigating.Neighbour disputes about access are among the most expensive and least satisfying pieces of litigation there is, and they have to be disclosed when either party sells. A written agreement recorded in a deed is nearly always the better outcome.
10. Scotland: ask about servitudes and core paths.Scotland uses servitudes rather than easements and has statutory public access rights alongside recorded core paths. The analysis is different and a Scottish solicitor is the right person to ask.

Tips

• Download the title register and read both the property and charges registers before assuming anything. They are the primary source.
• Photograph the route and its condition now. Extent disputes are decided on evidence of how the route has actually been used.
• If you are giving informal permission to a neighbour, put it in writing and date it. That single letter prevents a right accruing.

Common mistakes

• Blocking it to make a point — Obstructing a private right invites an injunction and obstructing a public right is an offence. It also converts a negotiation into litigation you then have to disclose when you sell.
• Allowing informal use for years without recording permission — Use as of right for twenty years can create a right. Written permission, renewed, is what prevents it, and it costs nothing.

If it doesn't work

Questions people ask