Understanding rights of way and restrictive covenants

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Acquiring land and property often raises the complex questions relating to rights of way and restrictive covenants. Julie Liddle casts some light on the issues.

The first thing to establish is whether the land in question adjoins a public highway and, if it doesn’t, how is the land accessed?

If this is by a private road or footpath, the next question is whether you have rights of way over the road or footpath? The title of the land should allow these rights, although if not, you would be well advised to rethink the situation.

The issues of prescriptive rights of way

If the site doesn’t adjoin a public highway and the title doesn’t grant a legal right of way, it’s crucial to establish if the seller has secured a prescriptive ‘easement’ or right of way as a result of having 20 years’ continuous use, without force, secrecy or permission.

Prescriptive rights of way should be approached with great caution, and you should seek a statutory declaration from the seller with regard to the extent, period, and purpose of use.

Why it’s important to minimise risk

To minimise the risk involved in a prescriptive right of way, you can ask the seller to acquire a ‘deed of easement’ from the owner of the right of way – presuming, of course, you can locate the owner. All too often, the precise situation is not straightforward.

Moreover, even when a site has a legal right of way, you should ensure this is physically evident. It’s also important to ascertain that the right of way clearly links the edge of the site to the public highway.

What do restrictive covenants mean?

Restrictive covenants are legally binding agreements that limit the use of land, for example preventing residential development, specific trading or business activity, or restricting the height of buildings.

Relevant case law is Crest Nicholson Residential (South) v McAllister (2004). The Court of Appeal heard that McAllister benefited from covenants relating to development land to be purchased by Crest.

The covenant related to the number of properties that could be built on the land and a requirement for plans to be approved by the original contracting party. However, the court could not identify the land covered by the covenants, therefore McAllister could not demonstrate that she benefited from them. Although the judgment hinged on the facts of the case, it did produce an explicit examination of the rules regarding the annexation of restrictive covenants.

The technically challenging nature of rights of way and restrictive covenants means professional advice should be sought at the outset.