Right of way disputes affecting farms

Napthens - November 29th 2017

Right of way

It is important to ascertain the rights of way somebody has over your farm, as this may be crucial for the effective running of the farm and farm security. The extent and nature of the right of way is equally important as this can lead to many arguments between parties, particularly if one party is arguing that they have “swing space” or “overhanging space” which could for example, reduce the availability of land for crops.

Who has a right of way over my farm?

To start with, check your title documentation. If there is nothing in your title deeds granting a right of way, then the other party may be able to claim a right of way if they have used it for in excess of 20 years without permission.  What if your title deeds do not refer to the right of way, but the other party has the benefit of a right of way in their title deeds.  This will need close scrutiny of the title deeds. I recently dealt with a case whereby a person was claiming a right of way over our client’s farm. The right of way was registered in the neighbour’s title deeds and our client’s title; however, after carefully examining our client’s title deeds it was clear there had been a mistake and the benefit of the right of way should never have been registered against the respective titles. They also sought to claim a right of way on historic evidence, again, this was dismissed. Our client had been to various other solicitors and was advised there was nothing they could do, hence the  importance of receiving advice from a specialist solicitor in this field, who was able to resolve the matter without expensive litigation.

Damage to a right of way           

Many farms are being sold off and being used as residential dwellings, however, rights of way may still exist over their private driveways for agricultural purposes. Usually it is only when the right of way is being used on a regular basis during  the summer months that it becomes an annoyance to the landowner, and starts being difficult with the farming community.  If you have any such issues, please do not hesitate to contact me. I recently dealt with a case whereby a landowner was seeking to claim our farming client should re-tarmac about half a mile of private driveway because of the alleged damage by the farmer. I attended on site to find a tarmacked road with no potholes or mud on the road as being claimed by the owner of the right of way, and the claim went no further.

If you have any issues about rights of way, either private or public, please do not hesitate to contact me.