25 October 2015
Rights of way – what does ‘continuous’ mean?
Arguments over rights of access to land are very common, and a recent case shows the importance of the wording under which a right is granted. It involved a piece of land which had been conveyed 'with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the property'.
This clause was used by the owners of adjacent land to justify their right of way over that land. Among the more interesting aspects of the Court of Appeal's decision in confirming that right were its conclusions that:
a) the right would exist if it had been 'continuous and apparent' on the date of the transfer of the land…subsequent use was not relevant;
b) access over the land on average once a month (as was the case here) was sufficient to establish that the use was continuous and apparent; and
c) having established the right of access by motor vehicles, the right to use for lesser purposes (e.g. on foot or by horse) was also established.
If you are considering purchasing a property, enquiries about the rights of access others may have over the land can be a particular issue. This is especially true in the case of rural properties which have been carved out of larger estates of land.