Conveyancing insights: buying a property with a public right of way

In this quick guide, we offer insights to help you navigate public rights of way, which can be a complex aspect of property ownership.

What are public rights of way?

Public rights of way are established routes granting public access across private land. England and Wales have an extensive network of public footpaths covering urban and rural areas. For hundreds of years, these pathways have facilitated movement and connected communities. 

The legal framework governing public rights of way dates back to various historical statutes and common law principles. Today, these rights are primarily regulated by the Highways Act 1980 and the Countryside and Rights of Way Act 2000.

Identifying public rights of way when buying a property

Local authorities will normally have a 'definitive map' of your area showing public rights of way. Discovering whether a property has public rights of way is an important step in the conveyancing process - particularly in rural areas where such pathways are more prevalent. 

During conveyancing searches, solicitors or conveyancers will typically reveal any existing rights of way. It's essential to rely on experienced legal professionals to interpret these findings and ensure the property buyer is fully informed.

There are different types of rights of way:

• Implied right of way: An implied right of way arises from longstanding historical usage without explicit legal documentation. Courts acknowledge it based on evidence, such as the duration and frequency of access. Property owners must respect this right despite its informal origin, ensuring unhindered passage for entitled users, for example, a neighbour required to cross your land to access their home.
   
• Express right of way: An express right of way is a formally documented agreement granting specific access across a property. It is established through legal deeds or agreements expressly outlining the rights and obligations of both parties involved. Unlike an implied right of way, which evolves from historical usage, an express right of way is clearly defined from the outset.
   
• Prescriptive right of way: A prescriptive right of way is established through prolonged and uninterrupted use of a pathway over a significant period, typically 20 years or more. Unlike an express right of way, which is formally documented, a prescriptive right of way arises through the continuous and unchallenged use of the pathway by individuals who are not the legal owners of the land.

Understanding rights of way and liability

In some cases, public rights of way are registered as easements on the property title. An easement is a legal right to use someone else's land for a specific purpose. The easement will specify the nature of the right of way (e.g., footpath, bridleway) and the conditions under which it can be used. Your solicitor can look at the property title and confirm if this is included.

Similarly, public rights of way are established through restrictive covenants imposed on the property by previous owners or developers. These covenants may be included in the property title documents and specify the rights and obligations associated with the right of way.

Understanding the nature and implications of these rights of way is essential for making informed decisions about purchasing the property and navigating any associated legal or practical considerations. Property owners need to understand their obligations concerning rights of way. While they cannot prevent lawful access to pathways, they are responsible for maintaining them to a reasonable safety standard. 

Property owners must ensure that pathways are unobstructed and safe for lawful access. Neglecting maintenance responsibilities can result in legal issues, including claims for damages. Property owners may be held liable for harm caused by negligence.  

Any unauthorised actions to obstruct access can lead to disputes and may require enforcement actions. Proactive management practices such as clear signage and regular inspections are necessary to minimise legal risks and foster positive community relationships.

Changing or diverting existing rights of way is a complicated process that requires legal approval from relevant authorities. While feasible under certain circumstances, such alterations are subject to stringent criteria and public consultation.

For further information, you may find it helpful to read the government guidance on public rights of way and landowner responsibilities.

Contact our conveyancing solicitors

Buying a property that has a public right of way may seem challenging, but with proper legal guidance, it should not discourage you. By understanding your legal rights and responsibilities, you can confidently handle this aspect of property ownership.

Our conveyancing solicitors possess the knowledge and experience to assist you throughout the property-buying process, ensuring you make informed decisions.

We have solicitors in London, Brighton, East Sussex, and Cumbria, assisting homebuyers nationwide.