Owners of land subject to a right of way (servient land) often wrongly assume that they can unilaterally vary the route of the right of way over their land by providing an alternative route and blocking the original route of the right of way.
It is only possible to unilaterally vary the route of the right of way if the deed granting the right of way gives the servient owner the right to do so. Unless there is a right contained in the deed to vary the route should the owner of the servient land attempt to do so without a formal agreement being entered into with the owner of the benefitting land (the dominant land) it is likely that a dispute will arise. The owner of the dominant land will likely have a claim in nuisance for the obstruction/wrongful interference with the right of way.
Simply providing an alternative route over the servient land will not extinguish the original route of the right of way as a right of way can only be extinguished by express release usually under deed. A contract for the release of an easement must be made in writing- see section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
It is likely that if the matter were before the court that the route of the old right of way will be upheld by the court despite the fact that an alternative right of way has been provided. This may possibly result in the land being burdened twice over.
The only way to vary the right of way would be for the parties to enter into a formal Deed of Release and Grant. The Deed of Release and Grant would grant a new right of way over the alternative route and extinguish the old right of way.
The new right of way would need to be registered at HM Land Registry against the dominant and servient land. Unless this is done the right of way will not bind the servient land and its owners or successors in title. The only way to do so is by registering it against both titles thereby ensuring that the right of way will bind the land and run with the land and benefit successors in title.
Quinn & Co have experience of dealing with rights of way disputes. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.