Acquiring a right of wayDecember 1, 2014
A right of way can be acquired by long use. The law in this area has evolved in a sometimes confusing manner but if a landowner is using a way over a neighbours land for twenty years openly, without permission and without force this can give rise to a prescriptive right binding upon and enforceable against the other landowner. The law implies such a right (a legal fiction) by applying The Prescription Act 1832, common law and the doctrine of Lost Modern Grant. Different provisions apply to each but it is often Lost Modern Grant that is relied upon because the claimant need only prove twenty years uninterrupted use at any time prior to the claim.
It is very difficult to prove that a right has been abandoned and arguably the burden of proof resting with the claimant is not particularly high. However, there might be challenges based upon lack of continuity or perhaps on the nature of the use. The claimant cannot have a use greater than that shown to have occurred during the twenty years claimed. For example, if the evidence clearly shows that the use was on foot only and not with vehicles, the Court will not create a vehicular right.
Like most disputes, the facts of any case vary and impact greatly upon the outcome of each case. This is an often complicated area of law and there are many more issues than can be mentioned here. Please contact Keith Hardington for advice. We are happy to act where required.