Rights of way and buying property: what you need to know

by Iain Mason

Published on 23rd August 2022

If you’ve decided to move home and are preparing to buy, it might be disconcerting to discover there is a right of way across the property.

What does this mean for you, as a prospective buyer? Should you pull out or can you go ahead with confidence?

Here is our guide to rights of way, and what you need to know when buying a property with a right of way across it.

Types of rights of way

Rights of way can be public – a footpath or bridleway for example – and should be revealed on the local search carried out by your conveyancers.

The Countryside and Rights of Way Act 2000 (the CROW Act) created open access land, allowing the public the right to roam across areas of open country, such as moor, heathland and registered common land. However, this does not grant access to land within 20 metres of a dwelling, nor does it include gardens.

Separate to this are private rights of way, which can be more problematic as these might not always be written down. These can be broken down as follows:

1. Express right of way – this will have been granted in the deeds to the property and will set out the terms of use. It is likely to detail who is allowed to use the right of way and what for (for example, it will state whether it is just to be used on foot or if it also allows vehicle access).
2. Implied right of way – an example of this would be a neighbour needing to cross privately owned land to gain access to their property. This is not usually a public right of way.
3. Prescriptive right of way – these will have arisen due to length of use, such as a footpath being used continuously and unchallenged for more than 20 years.

What are public rights of way?

A public right of way allows anyone to use the route. It could be a byway, bridleway or footpath, and invariably they are present because of historic use by walkers or (in the case of a bridleway) horse riders.

They will be marked on ordnance survey maps, they should be marked with signposts too. Public rights of way will show up in the local authority search which your lawyer will carry out on your behalf when you have an offer accepted on a property.

What are your obligations with a right of way?

It depends on the nature of the right of way. If a public right of way passes across your land, you must ensure you fulfil your responsibilities. Failure to do so and you could be liable if someone sustains an injury due to negligence.

Your responsibilities include:

• Keeping the right of way clear of obstructions, such as hedges, undergrowth and overhanging tree branches
• Keeping any stiles and gates in good repair (although you may be able to seek a contribution to the cost from the local authority).
• Ensuring you reinstate them if, for example, they are plough or planted with crops

Public rights of way are usually maintained by the local authority, so if there are any issues with the state of the right of way across your land, it’s a good idea to raise it with them.

If your property is subject to a private right of way, typically, you cannot block or obstruct the right of way. Responsibility for the maintenance and upkeep can vary as well.

Can a public right of way be diverted?

Yes, but only in certain circumstances: if the diversion would not be substantially less convenient to the public; and if the diversion would not change any end point of the path other than to another point on the same road or a connected road.

Which all means, if you are thinking of buying a property with a right of way across the land, you cannot rely on the possibility of being able to divert it. However, many people live very happily with a right of way across their land.

As ever, it’s advisable to seek legal advice from your conveyancing lawyer in the event that a right of way is present at a property you are hoping to buy.

For legal advice on buying and selling property in Swindon, Cheltenham and the surrounding area, please get in touch with the legal team at Optimum.