Implied Rights of Way
Some rights of way do not need to be created expressly by Deed, but can be implied by law. This has been emphasised by the Court of Appeal in a recent legal decision, Wood & Anor v Waddington 2014. This article discusses implied rights of way and the effect of that legal decision.
Easements are rights over an adjoining land owner's property, such as rights of way, rights of light, rights of support and rights of access.
Law of Property Act 1925
Section 62(1-3) states that when a property is sold, amongst other things, easements shall be deemed to be included with the sale.
Creation of Private Rights of Way
A private right of way is almost always created expressly by Deed. That Deed, when the property is registered at the Land Registry will be referred to in the Title Registers for both adjoining land owners, together with details of the right of way. The Deed will normally be copied and retained digitally by the Land Registry, and the Register noted to this effect.
Although most rights of way are created expressly there are several other ways that they may come into being by:
- prior use
This article is concerned only with Implied rights of way. For an article dealing with each type of right of way please see our article - Private Rights of Way Disputes.
Implied Rights of Way
An implied easement is not created by Deed but is implied to exist by law. The courts will look at the intention of the parties and as to how the property was intended to be used.
An example of how an implied easement can come about is where a landowner sells part of his land but neglects to create a right of way for himself to allow him access to the land that he has kept. There is a legal presumption that he would have had ample opportunity to grant himself a right of way, and so the implied right of way that would arise may be more limited in its scope than he may have intended. Thus, a court may allow him a right of way by foot only, rather than a right of way to include the use of his motor car.
The important matter to realise with an implied right of way is that a court will look at all the circumstances and what the parties intended, and therefore there is no specific pattern to follow. Where you believe you have an implied right of way you should look for examples of other rights of way that have arisen in similar circumstances to yours.
In the following case the Court of Appeal reversed a decision of the High Court, and decided in favour of the persons claiming to have two implied rights of way.
Wood & Anor v Waddington 2014
Mr Crook divided land owned by him into 2 separate parcels of land. Mr Waddington purchased one parcel of land. The other plot was sold to another person who began a livery business from stables within the land they had purchased and they then sold the land to Mr and Mrs Woods who continued to run the livery business. At a later date they developed the livery business, adding an indoor riding arena. They needed to establish their rights of way so that riders from their livery stables could access the bridleway and the road. The wording of the Transfer Deed included a paragraph using the phrase "of a continuous nature", i.e. an unbroken use of the right of way.
Mr and Mrs Woods applied to the High Court to claim the benefit of 2 rights of way over the land owned by Mr Waddington:
- A right to access a track and drive to the road
- A right of way on foot or by horseback over a track to a public bridleway.
At first instance, the High Court held they had no such rights of way, and an appeal was submitted to the Court of Appeal who reversed the High Court's decision.
As the basis of the appeal was reliance on Section 62 of the Law of Property Act, i.e. that there were implied rights of way, the Court of Appeal had to look at the intent of the parties and examine the particular facts of the case. Mr and Mrs Woods were able to adduce evidence from local residents who had actual knowledge of the use of the rights of way.
The Court of Appeal held that the physical evidence (the actual land itself) showed there to be continuous and apparent rights of way.
With regard to the right to access a track and drive to a road, there was evidence of the use of the track once a month, and the Court of Appeal held this to be a sufficient pattern of use.
With regard to the right of way on foot only to a bridleway there was evidence of vehicular use and this showed the route had been enjoyed by the owners of the land sold to Mr and Mrs Woods. The law permitted rights of way used by vehicles to also be used by bicycles, horses and pedestrians (except for motorways).
Accordingly, there were implied rights of way, as claimed by Mr and Mrs Woods, such rights having been transferred over from the previous owner who would have been entitled to those same rights by implication.
Rights of Way Search
A Rights of Way Search includes the Title Registers and Title Plans for each adjoining property, together with the Deeds copied and retained digitally by the Land Registry. All of these documents are important to study before delving further with regard to any dispute relating to rights of way, as in most instances they will provide the solution. It may also be necessary to obtain the same documents relating to the ownership of the retained land. In this case this would have meant obtaining these documents for the properties owned by Mr Crook, Mr Waddington and Mr and Mrs Woods. In such circumstances it would be necessary to use the comments box on the application form for the Rights of Way Search to request the Title Register, Title Plan and Conveyancing Deeds for the additional property.
Rights of Way Search