Right of Way and Easements UK

Questions about rights of way and easements cause more boundary and access disputes than almost any other area of property law in England and Wales. Whether you are buying a house with an alleyway running alongside it, planning to extend over a shared access, or discovering that a footpath crosses your garden, understanding the legal framework is essential. This guide explains the distinction between public and private rights of way, how easements are created and identified, and the practical steps to protect your position before and after purchase.

Public Right of Way vs Private Right of Way (Easement)

These are two entirely different legal concepts, though both relate to the right to pass over land.

A public right of way (PRoW) is a right exercisable by any member of the public to pass along a defined route. Public rights of way include footpaths (pedestrians only), bridleways (pedestrians, cyclists, and horse riders), restricted byways, and byways open to all traffic. They are vested in the public permanently and cannot be extinguished by the landowner simply choosing to block them. They are recorded on the Definitive Map, held by the local highway authority (typically the county council or unitary authority).

A private right of way (easement) is a right granted to a specific person or, more commonly, to the owner of a specific property ("dominant tenement") to use another person's land ("servient tenement") for a defined purpose. The most common form is a right to pass over a neighbour's driveway to reach a landlocked plot. Unlike a PRoW, the right is attached to the land, not to individuals, and passes automatically to new owners when either property is sold.

How Easements Are Created

Easements can arise in three main ways:

Express Grant

The most straightforward and legally certain method. The easement is expressly set out in a deed — typically a transfer deed, conveyance, or a standalone deed of grant. It will specify the route, the purpose (vehicular access, pedestrian access, drainage, etc.), and any conditions. Express easements are registrable at HM Land Registry and should appear in the title register of both the dominant and servient properties.

Implied Grant

In some circumstances, the law implies an easement even though it is not written down. The key implied easements arise from the rule in Wheeldon v Burrows (1879) — when a landowner sells part of their land and has been using a quasi-easement over the retained part, that use may become an implied easement in the buyer's favour. Implied easements also arise under Section 62 of the Law of Property Act 1925, which converts informal permissions and precarious rights into formal easements on conveyance.

Prescription (20-Year Rule)

An easement by prescription arises from long use of land without permission. To establish a prescriptive easement, the use must have been:

• Open — not hidden or secret
• Continuous — not occasional or sporadic
• Without force — not exercised by threatening or overcoming obstruction
• Without permission — a formal licence or permission prevents prescription
• For at least 20 years (under the Prescription Act 1832 or common law)

Prescriptive easements are more difficult to rely on because they require evidence of long-term use and are subject to legal challenge. If you believe you have acquired a prescriptive right, you should apply to register it at HMLR or seek legal advice before the servient owner acts to interrupt the use.

How to Check for Easements on a Title

For registered land (the vast majority of property in England and Wales), easements should be noted in the HMLR title register, accessible via the Gov.uk land registry service (currently £3 per title document). The A Register contains the property description, and the C Register (charges register) will list any rights, restrictions, or covenants benefiting or burdening the land.

The title plan (filed plan) shows the approximate extent of the registered title and may indicate access routes, but it is not definitive for the precise extent of easements. For more detailed investigation, an OS1 official search or a OS2 official search of part can be obtained from HMLR.

Your conveyancer will conduct these searches as part of the standard due diligence process, but it is worth reading the title documents yourself to understand what rights exist before exchanging contracts.

How to Check for Public Rights of Way

To check whether a public right of way runs over or near a property:

1. Consult the Definitive Map — available online via most county council websites. The Definitive Map is the legal record of public rights of way in England and Wales.
2. Check the OS 1:25,000 Explorer Map — green dashes indicate footpaths, pink dashes indicate bridleways. This is a useful visual guide but the Definitive Map takes legal precedence.
3. Ask your solicitor — the local authority search (LLC1) will reveal any public paths across or adjacent to the property.

A PRoW cannot be blocked, diverted, or extinguished by the landowner unilaterally. The process for diverting or extinguishing a PRoW requires a formal application to the highway authority under the Highways Act 1980, which is a lengthy and uncertain process.

What Happens if a Neighbour Blocks a Right of Way?

If you hold a private right of way (easement) and your neighbour erects a gate, fence, or obstruction that prevents you exercising it, you have several remedies:

1. Informal resolution. Write to the neighbour setting out the easement, the deed reference, and asking them to remove the obstruction. Many disputes are resolved at this stage.
2. Formal letter before action. A solicitor's letter citing the legal basis for the easement and the remedy sought (removal of obstruction, damages) often prompts compliance.
3. Court proceedings. If informal approaches fail, a claim in the County Court or High Court can seek an injunction requiring the obstruction to be removed and/or damages for any loss suffered.

For public rights of way, the complaint route is different — report the obstruction to the local highway authority, which has a legal duty to assert and protect PRoWs. If the authority fails to act, you can make a formal complaint or, ultimately, apply to the magistrates' court.

The Party Wall Act Overlap

The Party Wall etc. Act 1996 governs work to party walls, party structures, and boundary excavations — it is distinct from easements law but overlaps in boundary disputes. If an easement dispute concerns where the boundary lies, or if planned works would affect a shared wall or encroach on a right of way, Party Wall Notices may need to be served before work commences. Failing to serve notices does not make the works unlawful, but it removes the procedural protections the Act provides to both parties.

Restrictive Covenants vs Easements

These are frequently confused. A restrictive covenant is a negative obligation — an undertaking not to do something with land (not to build above a certain height, not to use for commercial purposes). An easement is a positive right to use another's land in a specific way.

Both run with the land and bind successors in title. The key practical difference is: easements create rights; restrictive covenants create restrictions. A right to cross a neighbour's land to reach the road is an easement. A prohibition on building a garage that would obstruct a view is a restrictive covenant. Both should be checked before purchase — your solicitor will look for both in the title register.

Indemnity Insurance for Unknown Easements

Where the existence of an easement is uncertain — for example, a route has been used historically but no express grant can be found in the deeds — indemnity insurance can be obtained to protect the buyer and their mortgage lender against the risk that the use is challenged. Premiums for residential properties are typically £200–£500 for a one-off policy. Lenders increasingly require this insurance before proceeding when an informal access arrangement cannot be formally traced to an express grant.

What to Look for Before Exchanging Contracts

• Read the title register (A, B, and C registers) — identify all noted easements and rights.
• Check the title plan for any indicated access routes or shared areas.
• Walk the property boundary and identify any worn paths, gates, or tracks that might indicate informal use.
• Ask the seller directly (in the TA6 form) whether they are aware of any rights of way, easements, or disputes — false answers give rise to misrepresentation claims.
• Run an OS1 official search if access rights are critical to the value or use of the property.
• Check the Definitive Map for any public footpaths crossing the plot.

Practical Takeaway

Easements and rights of way issues are far easier to resolve before exchange than after. If you identify an informal access arrangement that cannot be traced to an express deed, raise it with your solicitor before exchange and consider whether indemnity insurance or a formal deed of grant is needed. If you discover a public footpath crossing the property, establish its exact route and consider whether your plans for the land are affected. These are not matters to discover after completion.

For a comprehensive overview of everything in the title register — the A, B, and C registers, absolute vs possessory title, what chancel repair liability means, and the common defects that require indemnity insurance — the guide to understanding property title deeds in the UK is the best starting point for any buyer. Rights of way and easements are frequently mentioned in the same breath as restrictive covenants; the guide to removing a restrictive covenant in England and Wales explains the distinction clearly and covers all four routes to dealing with a covenant that blocks your plans. Where a rights-of-way or access dispute overlaps with a question of where the boundary actually lies, see our boundary disputes UK guide for the T-mark convention, adverse possession risk, and how to resolve ownership disputes without going to court.