Can a right of way be removed?

A private right of way is a type of ‘easement’, which is the right of a landowner to use part of another person’s property in a particular way.

How is a private right of way created?

In most cases, easements for rights of way arise in one of three ways:

• An Express grant is the most common type of easement and is created by a deed, usually when a person sells part of their land but wishes to retain certain rights over the portion sold. These rights must be expressly stated in the deed.
• An Implied grant is similar to an express grant but which has not been specified in a deed, as the easement is implied by law. This situation sometimes arises when someone acquires land and the only means of access is over land retained by the seller. The buyer would need to prove the rights exist.
• Prescription describes an easement that has been acquired through long use. It arises if a person can demonstrate that one landowner has used another person’s land without force, secrecy or permission; and continuously and without any interruption for at least 20 years.

Can a right of way be lost?

Once it has been created, it is very difficult for a private right of way to be lost. Typically, if a right is lost, it happens in one of three ways:

• The parties involved can expressly agree to extinguish the right by entering into a formal deed of release.
• The person with the benefit of the right can demonstrate by their actions that they intend to abandon it.
• Similar to abandonment, a legal principle known as ‘estoppel’ can terminate a right of way if the person over whose land the right has been exercised has relied upon the other person’s conduct, which indicates their intent to give it up.

But the courts have held repeatedly that a mere failure to exercise a right of way is not by itself enough for it to be lost. After all, why would a landowner give up rights over another person’s land that benefits their own when there is no advantage to them in doing so? Indeed, in the case of Benn v Hardinge [1992], the court held the fact that a right of way had not been used for 175 years did not give rise to a presumption that it had been abandoned!

In a more recent case, the Court of Appeal in Dwyer v City of Westminster [2014] held that the non-use of a passageway for 40 years did not constitute abandonment. This was despite the fact that it had been blocked and inaccessible for most of that time, a neighbouring landowner having obtained adverse possession of it.

What can I do about an unused right of way?

You may own land over which there is a right of way that you believe has not been exercised for a long time, or you may think you have a right of way over someone else’s land. In either case, you should exercise great caution before taking any action.

It would be very easy to find yourself embroiled in a costly dispute which you may lose. Also, a dispute might affect both properties’ saleability. Accordingly, you should always seek legal advice first to ensure you understand the strength, or possibly the weakness, of your position.