If you're acquiring land for development, you will want to know that you will be able to use the land for your intended purpose. One obstacle which may prevent or obstruct your proposed acquisition and use of the land, is the discovery that a third party has a private right of way that they can exercise over it. Another impediment may be that you need to have a right of way over land that is owned by a third party, in order for you to be able to access and/or use the land that you are looking to acquire for development. Essentially, a private right of way is the right to cross land belonging to someone else.

So what can you do about these potential issues? Well one solution may be to get a release from a third party who has the benefit of an existing private right of way that affects the land you're to acquire, or ask for a required right of way to be granted to you over other land by the owner of that land. Bear in mind, however, that you may have to pay that third party for the release or grant and it may not be cheap. Another solution in the case of an existing private right of way that affects the land you're to acquire, would be to see if indemnity insurance is available to cover the risk of a third party claiming the right of way (although insurance doesn't remove the right of way itself).

How can you ascertain if a private right of way affects land that you're going to acquire? Investigation of title (that is, looking at the Land Registry title and/or title deeds) should reveal if the land is subject to any rights of way that are actually contained in a document. However a private right of way may exist even if not on the title; it may exist because it has been exercised continuously for a period of 20 years. A full inspection of the land to be acquired is therefore very important, as this may provide evidence of past/present rights of way. Also, the replies to pre-contract enquiries (which are given on behalf of the seller of the land you're going to acquire) should be checked as these may reveal potential rights of way affecting the land.

Private rights of way are therefore tricky, but not insurmountable.

For more information on these issues please contact

Paula Ghosh

or your usual Lewis Silkin contact