This month, ANDREW LITTLE, commercial property lawyer at Pearsons & Ward, looks at private

access rights

THE English countryside has thousands of farm tracks providing access not just for landowners but also neighbouring properties and members of the public.

Sometimes, rights of access are personal to particular individuals and are therefore lost when those individuals no longer need them. In other cases, however, rights of access can attach to land and have the potential to exist forever unless expressly surrendered or extinguished.

There are various ways in which land-based access rights can arise, including through express written permission, legal implication or the law on prescriptive rights.

In my experience, prescriptive rights are the most troublesome because they are based not on a written document or piece of law or common understanding, but on evidence of a track having been used for the benefit of another piece of land for 20 or more years without permission, challenge or interference. This can have implications as to how the farm track is used and maintained.

For an easement to exist, in whatever form, you need:

l One piece of land (known as the “dominant land”) which has a right of access over another piece of land (known as the “servient land”);

l The dominant and servient land to be owned by different people;

l The right of access to benefit the dominant land itself, not just the current owners or occupiers; and

l The right to be sufficiently clear and defined.

Access rights created through express written permission will be recorded in a legal document known as a “deed”, which will usually explain where the dominant and servient land is located, the extent of the access allowed, the route that must be followed and any maintenance obligations.

It may be, for example, that access is limited to certain times of the day to limit disruption to farm activities, to follow a route around the main farm yard to minimise the risk of danger and subject to making good any damage caused. Access rights created through implication will not usually be recorded in writing but may be capable of being inferred with relative certainty through various laws, common intention or obvious necessity.

A typical example might be where the dominant and servient land were once in common ownership and it was understood, following a sale of the dominant land, that access rights across the servient land were part of the deal.

Rights acquired through prescription are different because they tend to be based on the evidence of previous owners and occupiers of the dominant land who claim to have exercised rights of access for the required period. If you dispute the existence or extent of any prescriptive rights, it is important that you seek legal advice immediately to assess your position.

Spurious claims should be robustly defended but those with merit require investigation and careful handling to ensure that, if an easement does exist, efforts are made to limit any adverse effects. On the other hand where an easement is interfering with the use of your land or any planned development, it may be possible to negotiate a change of route or even a surrender if you are prepared to pay compensation for any inconvenience caused.

For more information, phone Andrew Little on 01653 692247 or email