In property law, most properties are burdened with obligations not to do something, known as covenants, or enjoy rights to do something on other land for the benefit of the property, known as easements. B P Collins’ property team explores the latter.
The law relating to easements is complex however by way of a very basic summary, easements could include for example:
- Rights to use or connect service media (such as pipes and wires) located under neighbouring land;
- Rights of entry onto other land for the purpose of maintaining or decorating your property or boundary features; and
- Rights of way over estate roads or footpaths.
Easements can also be created in different ways, the main types being:
- Expressly – created in legal deeds and documents, for example as part of set of rights granted within a Transfer deed on the sale/transfer of a new parcel of land or within a more specific Deed of Easement creating new or missing rights;
- By implication – where rights arise for example by reason of necessity to enable land to be used or by reason of common intention of the parties if they both intended land to be used in a certain way;
- By Prescription – where rights have been enjoyed for a long period of time (generally over 20 years) without consent, secrecy or force.
If you would like to speak to B P Collins’ property team about the rights of way around your property, please contact them by email or by phone on 01753 889995.
Case study – Lamport & Others v Jones
The recent case of Lamport & Others v Jones [2023] focused on rights of way which are quite possibly one of the most important types of easements as they allow property to be accessed where the property does not abut adopted highways.
The claimants in this case enjoyed a right of way which had arisen by long use (prescription) over a short track road at the southern boundary of the defendant’s land. Problems between the parties initially arose due to the defendant placing steel bollards at each end of the track which restricted the width for vehicles to approximately the width of a quad bike. The claimants subsequently brought action against the defendant arguing a number of issues.
One such issue was requesting an injunction to restrain the defendant from obstructing the use of the track with the bollards which the Court granted to the claimants.
Another argument raised by the claimant was that right of way entitled them to improve as well as repair the embankments on either side of the track which had eroded over time from bad weather. The Court held that express rights may include rights to improve however rights gained by long use (prescription) were not the same and the latter would not include rights to improve. The Court held that the erosion of the track was a few centimetres whereas the claimants were trying to argue that they should be entitled to widen the whole length of the track by approximately 30cm. Repairs to the embankment were permitted where the damage interfered with the exercise of the right of way as this is “clearly work within the scope of doing what is reasonably necessary for the enjoyment of the right of way”[1], however anything beyond that would constitute improvement.
The case helped to clarify the distinction between repairing and improving a right of way and also highlighted that rights established by long use did not enjoy the same benefits as express rights contained within legal deeds.
Rights of way – Things to Note
It is worth highlighting some important points regarding rights of way:
- The owner of the land over which the right of way is exercised is not legally obliged to maintain the surface to any particular standard or maintain insurance over the said land against injury to third parties;
- The party with the benefit of the right of way is entitled to carry out repairs but not improvements; and;
- Rights of way do not include rights to park a vehicle on the land over which the right of way is enjoyed.
The case of Lamport & Others v Jones [2023] is a useful reminder that when purchasing land, it is important to familiarise yourself with the extent of rights which the land has the benefit and not to do more than permitted.
Please contact B P Collins’ property team for further information by emailing enquiries@bpcollins.co.uk or call 01753 889995.
[1] The Honourable Mr Justice Mellor in Lamport & Others v Jones [2023] EWHC 667 (Ch)
