Easements and rights of way

Certain types of privately owned land can be legally used by the general public or specific individuals who do not own the land for various purposes such as rambling or drainage. But how does this work from a legal perspective?

What is an easement?

An easement is a right to cross or otherwise use someone else's land for a specified purpose, for example, to:

  • Lay electricity or telephone cables
  • Maintain water, drainage and gas supplies
  • Walk or drive across the land to get access to other land

Easements can also prohibit the owner of the land from using their land in certain ways which could interfere with the rights of neighbours - for example by building tall structures which would reduce light in adjoining properties.

How is an easement acquired?

Express grant

This type of easement is generally created by deed, when someone sells part of their land but wants to retain certain rights over their previously owned land. These intended rights must be expressly stated.

Implied grant

Similar to an express grant, this normally arises when a landowner sells part of their land. However, implied grants do not need to be specified in any deed; instead these are implied by law. A good example is where the land sold provides the only means of accessing the retained land. Implied grants are also sometimes known as easements of necessity.

Prescription

This occurs if a non-owner has used a piece of land openly but without permission in a certain way for at least 20 years. In this case, they will be granted an easement which allows them to continue using the land in this way.

How can an easement be extinguished?

Easements continue to run until:

  • The piece of owned land and the adjoining land (eg in the case of an express or implied grant) comes under the same ownership
  • A certain expressly agreed expiration date for the easement has been reached or a new deed revokes the easement
  • An easement has not been used for at least 20 years

What is a right of way?

A right of way is one of the most common types of easements, which often provides rights of access to owners of adjoining lands. But rights of way can also be afforded to the general public (known as the right to roam) if:

  • The land is designated as 'open access' - such as mountains, moors, heaths and downs
  • The landowner has given permission for access ('permissive access')
  • There is a local tradition of access

Furthermore, public rights of way exist across many types of privately owned land, in the form of footpaths, bridleways and byways. Landowners must ensure they do not obstruct or interfere with these public rights of way.

How can a right of way be granted?

Rights of way are created in the same way as easements (see above). In terms of permissive access, the landowner can either reach a formal agreement with the local council or may decide to publicise its availability in a less formal manner (eg by displaying signs).

Public rights of way are often historic but sometimes are created in a similar way to prescriptive easements (ie if the public has used a path uninterrupted for at least 20 years). For more information read Definitive maps of public rights of way.

How can a right of way be closed?

Rights of way on private land can be closed in the same way as easements can be extinguished.

In the case of public rights of way, the local highway authority may be able to close or divert a route. For more information read Definitive maps of public rights of way.

How are disputes over easements and rights of way resolved?

In the first instance, negotiation with neighbours can be the best way to resolve any disputes concerning easements. For public rights of way, these can be discussed with the local highway authority.

This is a complex area of law and it is advisable to Ask a lawyer for information on your particular situation.