A private right of way is a right of passage in favour of your property over another’s land.
A deed of grant is the instrument that sets out the extent of the route over the land subject to the right of way and the purpose for which the right of way has been granted.
The deed of grant should normally say whether or not it is limited to a right of way on foot only or whether it includes a vehicular right of way over the land.
In addition, it should state whether it can be used at all times of day or night or is restricted to certain times and it should provide the purpose for which the right of way is granted e.g. that it is to be used for all purposes in connection with the use and enjoyment of a single residential dwelling. Sometimes the deed of grant fails to make clear these matters and disputes arise between the parties and a court will be asked to make a declaration as to the extent and purpose of the right of way.
This often occurs when there is a grant of “a right of way” without further reference to whether it includes vehicles. Often it is considered that this includes a grant of a right of way for vehicular access provided that at the date of the grant the route of the right of way would physically permit use by vehicles.
In Kain v Norfolk [1949] Ch 163 at 168 Jenkins J said: “Counsel says, and I think that he is supported by authority, that a right of way given to the grantee of property at all times hereafter to go, pass and repass along a certain way without any reference to horses, carriages, carts or anything else, will, per se, unelaborated as it is, give a right of way for all purposes, that is to say, a right to pass with vehicles as well as on foot, provided that the way to which the right refers is a way suitable at the date of the grant for use by vehicles.”
However, problems will arise should the servient owner seek to limit the exercise of the right of way to pedestrian use only and prevent vehicular access. In such cases it may be necessary to apply to the court to seek a declaration of the court that on a proper construction of the deed of grant it includes a vehicular right of way.
In such cases the court will need to look at the wording of the deed and any plan attached itself to see the extent of the right of way granted and what the parties had in mind/intended at the time of the grant e.g. if the right of way was said to be over “a pathway” “track” “accessway” or “roadway”. The courts will look at the historical evidence of how the right of way has been used in the past including witness evidence when determining the matter.
In addition, whether or not there was a track at the time of the grant wide enough to accommodate vehicles. Any right of way would be limited to what the servient land could physically accommodate because that is all that the parties can reasonably have contemplated at the time of grant –Todrick v Western National Omnibus Co [1934] Ch 190.
This is a complex area of the law and each case will turn on its own facts. Should you have a query regarding the extent of a right of way and wish to discuss the same please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as we can.
This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.