Accessing agricultural land frequently necessitates a right of way across adjacent private property or a route that has not been officially sanctioned by the Highways Authority. A right of way is defined as an easement. This is the privilege of one landowner to utilise the land of another for a particular purpose.
A right of way is frequently established through a formal written agreement between the two landowners. Frequently, the precise location and course of the right of way are delineated in a deed. In this article, Agricultural Rights Of Way, we take a look at the process and mechanism involved.
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Rights of way can arise in law by three ways:
Express right of way
Express rights of way are established through contractual arrangements and documented in property deeds. For instance, in the case where one party transfers ownership of adjacent land while selling a portion of land, they may retain a right of way over the sold land. Generally, they are bestowed upon a property owner-to-owner basis with a designated intention, such as enabling passage to the other’s property.
Right of way by legal implication
By way of necessity, rights of way may be implied; for instance, if an individual sells a parcel of land while retaining ownership of an adjacent parcel of land, and the sole access point to the retained land is through the sold parcel, but neither party explicitly specifies this right in the deeds, the parties fail to create an implied right of way.
Right of way by prescription
By prescription, a right of way may be established when one of the parties can provide proof that they have been lawfully traversing a parcel of land under their ownership for a minimum of two decades, without any obstruction, coercion, or consent from the landowner.
Rights of way over registered land
The purpose of the land registration system is to prevent, or significantly decrease the probability that a buyer will be obligated to pay for interests that encumbrance the property without their knowledge. In support of this goal, certain interests affecting registered land must be registered; failure to do so results in the forfeiture of said interests upon the sale of the registered land.
Generally, private rights of way granted expressly by deed must be registered if the encumbered land is registered at the time of the grant; otherwise, they are forfeited upon the land’s sale.
Rights of way established prior to the initial registration of the burdened land ought to be included in the register upon first registration, if known about. However, in situations where this does not occur (e.g. rights of way established by prescription or implication), the right will typically not be forfeited upon the sale of the land provided the following conditions are met:
- the purchaser is aware of it, or
- It would have been evident to a reasonable degree of scrutiny that the land traversed by the right of way is accessible, or
- The individual who is entitled to the right of way must provide evidence that it was utilised within the one-year period preceding the date of sale.
Nevertheless, certain rights of way that were established prior to 2006 may remain enforceable even in the absence of the aforementioned three conditions: for instance, even if the purchaser was unaware of the right of way and had no reason to suspect of its existence.
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Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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