Private Right of Way

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Private Right of Way

Solution Ideally, the owners of both the dominant and servient tenements should know exactly:
• where the right of way runs from and to;
• exactly what route the right of way follows between those two points;
• whether there are any width, weight or height restrictions on the traffic that uses the right of way;
• whether the traffic permitted to use the right of way includes motor vehicles, motor cycles, or is restricted to passage on foot;
• whether there are time restrictions in force, either as to time of day or day of the year, on which the right of way may be used;
• who is responsible for the maintenance of the right of way.
Rarely are all, or even a fair proportion, of these things known.

Generally:
• you may pass and repass along a right of way as long as you do not stop and linger on the right of way;
• if the right of way is obstructed then you may divert along another route provided that the diversion remains on land belonging to the servient tenement (otherwise you would be trespassing on a third party's land);
• a gate is not considered as an obstruction of the right of way provided that the users of the dominant tenement have the means of opening and/or unlocking the gate;
•
• the owner of the dominant tenement cannot expect the route to be widened, strengthened or given extra headroom just because his needs have changed: he is entitled only to the width, weight or headroom that was envisaged at the time of grant of the right of way.

A private right of way on foot permits you to:
• pass and repass on foot between the dominant tenement and the public highway;
• with or without a load that one person might be expected to be capable of carrying;
• or pushing a small barrow or trolley or perambulator, or wheeling (not riding) a bicycle, provided that the wheeled device is not too wide to be accommodated by the footpath and by any gates along the path.

A vehicular private right of way permits you to:
• drive vehicles of up to a permitted width, height and weight along the carriageway between the public highway and the dominant tenement;
• stop a vehicle on the right of way immediately adjacent to the dominant tenement for the purpose of loading and unloading that vehicle;
• perform other reasonable acts, such as pulling off the carriageway onto the verge in order to pass oncoming vehicles.

A vehicular right of way is not a right of parking.

If the width, height and weight limits of the right of way are not explicitly stated in the deed of grant then the courts will decide that these limits were set by naturally occurring restrictions that were in place at the time of the grant, such as the width of a gate at the entrance to the carriageway.

It is quite common to find a carriageway that is much narrower than the defined width of the right of way, for example a 10 feet wide carriageway within a 40 feet wide right of way, with 15 feet wide verges on either side of the carriageway. In these circumstances it is perfectly acceptable to pull onto the verge in order to avoid a collision with oncoming traffic, but it is not acceptable to drive along the verge just because it falls within the stated width of the right of way.

Repairing a private right of way
If the right of way falls into disrepair, and if no-one can be identified as the party responsible for maintenance and if the owner of the servient tenement does not repair it, then the owner of the dominant tenement (who is inconvenienced by the poor condition of the way) may repair the way but must be careful not to improve the way (for it is not his land to develop). Thus a gravel drive may be re-graveled by the owner of the dominant tenement but must not improve it by concreting or tarmaccing the surface.

Sometimes the owners of properties served by the same private road will form a club, often referred to as a road fund committee, charged with looking after the maintenance of the private right of way. They can do this if each property served by the road includes the portion of road (even if only up to the centre line) that fronts it. The costs of carriageway repair are met from funds raised through membership subscriptions. If the road fund committee decides to improve, rather than simply repair, the carriageway then each owner, being the servient owner of the road that fronts his property, is deemed to have given his permission for improvement of the road.

Varying and extinguishing a private right of way
The owner of the servient tenement is entitled to develop his own land, and this can come into conflict with his neighbour's overriding interest, ie. the right of way.
It may be possible, bearing in mind the configuration of the land in the servient tenement, to redefine the right of way along a new route. This has to be negotiated with the owner(s) of the dominant tenement(s) before a Deed of Variation can be drawn up by a solicitor.
It may be desirable for a right of way to be extinguished altogether. Again, this has to involve negotiation with owner(s) of the dominant tenement(s). It is usual in these circumstances for the owner of the servient tenement to pay all of the costs associated with obtaining a replacement right of way (over a third party's land) for the dominant tenement(s). A deed of Extinguishment is needed to formalise the extinguishment.

Excessive user
Owners of servient tenements are sometimes aggrieved when there is a dramatic increase in the traffic using the right of way across their land. They may take Court action pleading excessive user, ie. that a higher level of use than permitted has taken place. Such action is almost certainly doomed to failure because, whilst other limits may be in place on the right of way, there is usually no limit on the number of times in a given period that the dominant tenement may use the right of way.

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Article details

Article ID:	32
Category:	Property
Date added:	15-02-2009 06:44:53
Views:	1626
Rating (Votes):	(32)

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