Legal advice: Rights of way

RIGHTS OF way can be vital to the success of licensed properties. Whether they are required for trade deliveries, vehicular access to the car park, emergency exits or fire escape routes, protecting a right of way is essential. Consider, for example, the effect on your business if a neighbour erects a fence which partially blocks a right of way, restricting access for drays delivering your drinks supplies.

A right of way is a type of 'easement', a word which originates from the old French word 'aisement', meaning 'convenience' or 'accommodation'. An easement, put simply, is a right over the land of another person. Because easements are rights over the property of others they relate to the land in question, regardless of a change in ownership.

Rights of way are the most familiar types of easements, and they can be created in a number of ways. One of these is by grant - where the owner of the land grants the right of way over their land. Such an express grant will usually be recorded with the Land Registry and kept with the deeds for the affected properties.

Alternatively it may be by reservation - where the buyer and seller of a piece of land agree that the seller should retain a right over the land sold. This too would usually be recorded with the Land Registry and evidence kept with the deeds.

Continuous right of way

Another form is implied grant, where the land sold was subject to a right of way which was continuous or apparent, was necessary for the enjoyment of the land sold or has been used by the seller of the land at the time of the sale. A right of way may also be created by necessary intention. This could arise, for example, where land is sold and there is no other legal way of accessing it.

Finally, rights arising by prescription would usually require a demonstration that a right of way had been used as such for at least 20 years.

The historic principle is that a legal easement (for example, a right of way that has been registered with the Land Registry) is binding against the whole world. A right of way that has not been registered, on the other hand, is binding only against a bona fide purchaser of the legal estate with notice of the easement. This is not always necessarily the case, but generally your position will be stronger and more certain if the right of way is registered.

If a right of way is interfered with, you may be able to take action. A trivial interference will not give rise to a cause of action - the interference must be substantial. The key question you should answer in judging whether there is significant interference is: can the right be substantially and practically exercised as before? If the answer is no, then you may be able to claim one of the following remedies.Remedies for interference with the right of way

If the interference with the right of way is sufficient for you to take action, there are a number of remedies which may be available. Firstly, abatement - it is possible to remove an obstruction without involving the courts, but the law does not favour individuals moving obstructions, and a person who does so may well end up having to prove that reasonable care was used in the process.

Secondly, an injunction, which is a discretionary remedy. To obtain an injunction restraining interference with a right of way, it must be shown, among other things, that the interference is substantial and that an award of damages would not suffice.

Finally, damages - would an award of damages, rather than an injunction, be enough to compensate the person suffering from the interference? Where damages are the appropriate remedy, the courts are becoming more willing to measure the damages by reference to either how much a person would have been willing to accept for the loss of the right of way or the amount of profit which the person interfering with the right of way may make as a consequence of their actions.

A final word

Don't delay. If you hesitate in trying to protect your right of way, then you are increasing your chances of failure in obtaining an injunction, which is the most powerful method of protection. If you need to protect your business by protecting a right of way, act swiftly. If you own your own business, take legal advice, and if you are a tenanted operator contact your landlord at once to notify them of the problem.