Rights of way, searches and the role of residential conveyancing solicitors
One of the duties of a residential conveyancing solicitor when conducting local authority searches prior to completing legal procedures for the purchase of a property is to check for rights of way and footpaths on and around the land in question.
A right of way is defined as a path which anyone has a legal right to use on foot and sometimes other forms of transport. Legally, it is part of the Queen’s highway and subject to the same protection in law as other roads.
Usually the route of a public right of way will be shown on the official definitive map held by the local highways authority, which is likely to be the county council, unitary authority, London or metropolitan authority. Ordnance Survey maps will also show paths but the largest scale ones are needed to see sufficient detail in relation to a particular area of land.
Inner London boroughs do not have to produce definitive maps and in all parts of the UK there are paths which may not be shown on current maps but have been used in the past.
Anyone is entitled to ‘pass and repass’ along a right of way and they may stop to rest, admire the view or consume refreshments, providing they stay on the path and do not cause an obstruction. The walker is also allowed to take a ‘natural accompaniment’, which can include equipment such as a pushchair.
Many paths are not legal rights of way
However, many paths are not legally rights of way and do not have the same legal protection even though they are regularly used by the public. Some of these will be in places such as parks or National Trust land, but other paths, known as permissive routes, are open because the owner has given permission.
In those circumstances, there is often a notice stating that the route is not a right of way and that it may be closed. Sometimes these are shut for one day a year in order to underline their permissive status.
Some rights of way have been in use across the UK for hundreds of years and various Acts of Parliament have consolidated the legal position of the public. The latest of these measures is the passing of the Marine and Coastal Access Act 2009 which enshrines a right to walk around the whole of England’s open coastline.
In urban areas, such as Brighton, this is likely to have little practical effect on property owners but where the coastline is in private ownership Natural England is beginning a programme of managing access and agreements with land owners, starting in Dorset ready for the Olympic Games in 2012.
Most paths become rights of way because the owner ‘dedicates’ them to public use, however very few paths are formally dedicated but the law assumes that if a path has been used for some time then the owner had intended to dedicate it as a right of way. Some paths become official through agreement between local authorities and owners or by compulsory orders.
‘Once a highway, always a highway’
In law it is difficult to remove the status of a path even if it has been unused for some time. The rule is ‘once a highway, always a highway’. Local authorities, which are responsible for rights of way regulation and maintenance, can apply to the Environment Secretary for path orders to close or move a path if there are sufficient reasons and no objections.
Maintenance of a path’s surface is usually the duty of those local authorities and they have the power to force owners of neighbouring land to keep the route clear of obstructions including overhanging vegetation.
There are other obligations on the owner of a right of way, especially if farmland is involved, such as restrictions on allowing bulls in publicly accessible fields, and ‘misleading’ notices calculated to deter walkers from using a path are banned.
On the other hand, walkers must not trespass on land which is not part of the right of way or do anything other than use it for its intended purpose otherwise the landowner can use reasonable force to compel them to leave.
With all these caveats involved in ownership of a right of way together with the various boundary issues that may arise, the services of an experienced residential property conveyancing lawyer will be needed to ensure the protection of the new owner’s interests and establish if there is a potential for future conflict.
Advice from Healys solicitors of London and Brighton
If you are thinking of buying a property or land in which there may be an issue concerning rights of way or the status of a footpath that you believe may affect the value or use of the home, whether in a city such as London, Brighton’s coastal areas or in the countryside, Healys team of experienced residential conveyancing solicitorsare ready to help.
Not only do all Healys staff have a helpful attitude in achieving the best result for their clients, with links to other skilled professionals across its general legal practice, it can provide advice and representation on all aspects of property law.
For more information and advice on costs of Healys’ conveyancing services, you can request a call-back via the website or email partner Kiri Kkoshi – telephone 020 7822 4148.
I have a highways issue regarding a property we purchased back in 2013. Highways state they have highway rights over the properties front garden but we were never told of this and the land registry document states we purchased up to the highway. In the original development there has always been car standing for a couple of cars which now seem to be on highways rights of way land! This has all come about because we put a fence up on our front garden due to 2 vehicles in 13 months crashing into out property. We sought advice and also planning permission and highways stated if we own the land we can put up a fence 1 meter in from the highway and no more than 900mm high which we have done. I have had a letter today from Leicestershire County Council, stating that we have to remove it as highways have rights over the land. Because of the expense of the fence I thought I had done everything right so that this wouldn’t happen. My local councillor also said if we own the land we can put on it what we want within the specification of highways. Highways also knocked at my door and said that if we own the land we can put on it what we want.
We need help in sorting this out and I have read that you specialise in this type of issue
Thank you for getting in touch, Gillian. Please email us at email@example.com with more information and your contact number so that we can direct you to the right team.