Can I Divert a Right of Way?

If part of my land is subject to a right of way, can I divert or re-route it elsewhere that is more convenient?

This was a question posed by one of our clients recently.  The land had been acquired subject to a long-standing right of way in favour of a number of nearby properties.  However with development in mind, our client wondered if the right of way could be transferred to another part of the property, to allow the development to proceed.

Private rights of way are easements

This question concerns private rights of way, in contrast to public rights of way over a public highway, which are dealt with differently.  Private rights of way are easements, and interference with them is actionable by nuisance. Therefore to unilaterally prevent use of the old right of way, even if an alternative was provided, would give grounds for a claim.  That is, unless the original grant of the right of way specifically allowed the grantor to subsequently vary or re-route it, or if this right was otherwise implied.

Interference

If a right of way is blocked or otherwise obstructed, in order to prove a claim in nuisance, the person with the benefit of the right of way must prove they have suffered substantial interference with the right.  Whether the interference is substantial or not depends on the individual facts, but the test has been considered in numerous Court cases. The question is whether, given the interference, the right may be exercised as conveniently as before? For example, a gate or even a locked door may not be considered a substantial interference, provided a key is also made available. However, the offer of or existence of an alternative route does not prevent the interference being actionable in its own right, although it may affect the remedies available.

What remedy does the Court provide for interference in a right of way?

These are varied, but there are four.  Court orders for declarations, injunctions and damaged may be awarded. The last remedy, abatement, does not need Court involvement and is a self-help remedy.

Declarations

Declarations are used by the Court to define and confirm the extent and existence of an easement.  Declarations are binding on the parties and their successors, which is why all interested parties must be joined into the action. Sometimes the Court will make a negative declaration too, to confirm that something will not cause substantial interference with a right or easement. Any Court declarations should be kept with the deeds to the properties affected.

Injunctions

Injunctions are only awarded in cases where damages would not adequately compensate the person who has suffered.  They are also urgent remedies which are only appropriate where the claim has been brought without delay. There are different types of injunction, and whilst they are binding on the parties, they do not bind successors. The Court tends to view injunctions as a powerful, effective remedy and therefore it is not granted frequently.

Damages

Damages are calculated to compensate the claimant for what they have actually lost. The damages are assessed under the doctrine of tort. Damages will be diminished if the claimant has not mitigated their loss, or if they caused or exacerbated any loss themselves through their own action or omission. In the case of rights of way, the loss often relates to an inability to use land, or actual damage or destruction to a part of the property. Sometimes, where there has been unreasonable behaviour, damages are awarded for stress or anxiety.

Abatement

Abatement is a common law right which entitles someone to enter onto the servient land (the land subject to the easement) in order to put right the interference themselves. In practice, this really means entering onto the land to remove a simple obstruction. It is not appropriate for substantial or complicated, long standing interference. The Court has noted that unless it is an emergency, the person entering onto the property belonging to another should first give notice.

Practical steps

These remedies, depending on the circumstances, are open to a claimant whose right of way has been obstructed, even if an alternative route has been provided. The situation could arise, therefore, that the old right of way is upheld by the Courts despite the existence of a new alternative right of way. This means the burdening the land twice over.  For this reason it should be considered by grantors whether the new easement is to be granted in addition to the existing right, or in place of it. If the intention is to replace the existing right, in other words a true re-routing of the right of way, there are two stages to the process.  First, the new right of way needs to be granted by deed. Secondly, the beneficiary needs to release the grantor from the old right, thereby extinguishing it, in favour of the new. The other important point is to make sure that agreements of this nature, whilst commonly agreed verbally by neighbours, are formally documented in writing. They also need to be registered at HM Land Registry against the dominant and servient land. This is the only way of ensuring they will run with the land and benefit successors in title.

If you have any questions about granting or releasing rights of way, you can call Eleanor Rattay on 0116 281 6224 or email eleanor.rattay@bhwsolicitors.com.