Private: No Entry! Unintended Rights of Way over Land

• Posted onNovember 3, 2016

For a landowner, sometimes it is all too easy to overlook the informal use of their land by others, particularly if such use does not directly interfere with their own use of it. However, they may later find that the informal user has the benefit of a permanent right of way over the land. It is therefore important to be aware of what may be happening on your land and take positive action to prevent others gaining unintended rights.

Broadly, a right of way may be acquired where it has been enjoyed for at least 20 years without interruption, without force, without secrecy and without permission. In order to prevent the right becoming permanent, a landowner could take the following action:-

• Put up clear signs stating that the land is private and there is to be no entry other than by permission of the owner;
• Erect a fence or lockable gate to prevent use “without force”;
• Write to the user requiring them to stop use of the land.

Of course, if use of the right is agreed, the parties may enter into a written agreement setting out terms of use and any requirements for contributions to maintenance costs. Recent cases have shown, however, that even where there has been some correspondence between the parties to negotiate formal rights, failure to act decisively on the part of the landowner when it has knowledge of unauthorised use may result in a permanent right being acquired in the absence of written agreement.

For example, in the case of Webb v Walsall MBC [2011], Mr Webb crossed a car park owned by the council in order to access his garage for 27 years. The parties had unsuccessfully attempted to negotiate a formal agreement during this time. In 2009 the Council wished to sell the car park for development and fenced off access. The council argued that the failed negotiations meant that there was an implied permission granted to Mr Webb, but the Land Registry adjudicator ruled that Mr Webb had established a legal right of way in his favour.

If someone is exercising a right of way over your land, in order to achieve certainty for both parties, reaching a written agreement is always advisable. Care must however be taken to ensure that any negotiations regarding an agreement reach a timely conclusion and in the meantime, early action is taken to prevent use of the right.