Property essentials for charities: Rights of way

Following on from our ILM Lunch and Learn regarding third party rights over property and ticking clocks, Anna Phillips and Arani Arunan examine rights of way.

Legacy professionals play a vital role in identifying or signposting their legal team to potential claims of rights of way over property gifted to charities.  Charities can be gifted property for which the relevant period for a right of way arising may have already commenced. The existence of a private or public right of way can reduce a property's market value and/or affect its development potential. Actions can, however, be undertaken to prevent any potential new rights of way from arising within the relevant period: As such, prompt identification of potential rights of way can be key to ensuring charities maximise the value of their gifted properties.

What are rights of way?

A right of way allows a person or persons to pass over another person's land in a specific way, for example by foot or vehicle. There are both private and public rights of way.

Public rights of way

Public rights of way are paths that are open for everyone to use, and examples include footpaths, bridleways, restricted byways and byways open to all traffic.

Significantly for legacy property, new public rights of way can arise in various ways due to inaction in the estate administration process where a route has been used by the public without force, secrecy and without permission for a period in excess of 20 years.

Private rights of way

Similarly, a private right of way allows certain individuals (rather than the public) to cross over another person's land for their own benefit: These rights can also arise by long use in various ways (at common law, lost modern grant or under the Prescription Act 1832) where it is shown that the right has been enjoyed for at least 20 years openly without force, permission, or secrecy.

Why legacy professionals should be alert to private and public rights of way

Where evidence such as observations on the ground, photographs, records or correspondence point to ongoing use of a right of way without permission, the position should be investigated and necessary action undertaken.

Any information obtained about existing public and private rights of way should be shared with the charities' legal team and surveyors or valuers (including for section 119 and section 120 Charities Act reports). Legacy professionals should also take timely steps to inform their legal team of any evidence of potential rights of way. Any delay in doing so could allow for such rights to arise and materially impact the value of gifted property. 

Practical options where rights of way cause issues

If there is a risk of a public or private right of way arising and there is deemed to be less than 20 years of use, the following steps could be undertaken to stop such rights from arising:

• Keeping people off the way by physically blocking the path with fences, gates, or barriers;
• Displaying signs that clearly restrict access for example stating "No right of way"; and
• Giving users of a right explicit permission to use the right so it is no longer without permission; and
• Protecting property from new public rights of way for a 20 year period by using the statutory deposition of maps and declarations process.

Careful advice should be taken regarding these options and the best way forward in specific circumstances.

Conclusion

Established private and public rights of way over land gifted to charities can impact its valuation and development potential. For legacy professionals, early identification of potential rights of way that generally arise with 20 years of use is essential to protect the value of gifted property.

Legacy professionals can place themselves in a good position to identify potential rights of way by:

• Being knowledgeable about gifted property including its boundaries;
• Keeping a watchful eye on the use of any gifted land; and
• Proactively identifying any potential rights (for example by visiting the property in person or via an agent to identify physical signs of ways being used and liaising with estate agents or other professionals knowledgeable about the area or geographical location).

Legacy professionals should work with their professional advisors to investigate any potential rights of way and take timely action to prevent such rights from arising where possible.

Please contact our Charity Property team to discuss any queries you have regarding rights of way.