Right of way Definition

GLOSSARY

What does Right of way mean?

An easement conferring a right to travel across land.

The right may include a right to cross land with or without animals or vehicles. It must not be used in such a way as to amount to taking possession.

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Positive covenants in transfers—protecting positive obligations—checklist

Positive covenants in transfers—protecting positive obligations—checklist What is a positive covenant? A covenant is a form of contract. Examples of positive covenants which typically appear in transfers of land include obligations to: • repair or maintain (eg accessways) • erect buildings or boundary fences (eg on a transfer of part) • pay further money (eg if planning permission is obtained, or on a sale after the land has been developed) What is the issue with positive covenants? Where a party to a transfer of freehold land (Party B) enters into a positive covenant with the other party to the transfer (Party A), the burden of that covenant will not bind Party B’s successors in title, notwithstanding Law of Property Act 1925, s 79. It will not run with the land. The burden of the covenant is directly enforceable only against Party B as original covenantor and remains enforceable against Party B even though Party B may have parted with all its estate or interest in the land before any claim...

Due diligence—positive covenants—checklist

Due diligence—positive covenants—checklist A positive covenant is a promise to do something or to spend money. Common examples include a covenant: • to build and maintain a fence, or • to contribute to the maintenance of a shared driveway A covenant in a lease 'to use and occupy the demised premises solely and exclusively as a self-contained flat' was held to be restrictive, not positive. It was merely restrictive of the use which could be made of the flat. It did not positively require that it be used and occupied. Can the buyer enforce the covenant? The buyer will be able to enforce the covenant against the original covenantor even after they have parted with the land (assuming they can be found and is solvent) provided: • the benefit of the covenant will pass to the buyer, and • the document does not provide otherwise (eg that the covenantor is only liable for so long as they own the burdened land) However, once the original covenantor has parted with the...

Public rights of access under the Countryside and Rights of Way Act 2000

Part I of the Countryside and Rights of Way Act 2000 (CRWA 2000) is intended to give greater freedom for people to explore open countryside. It provides a statutory public right of access on foot — subject to exceptions (see: Public rights of access under the Countryside and Rights of Way Act 2000—Excepted land below)—over:•mapped areas of ‘open country’, including mountain, moor, heath and down•virtually all registered common land (ie land which has been registered as such under the Commons Registration Act 1965)•‘coastal margin’, as specified by the Secretary of State under CRWA 2000, s 3A•‘dedicated land’, ie land dedicated by its owners for public access under CRWA 2000, s 16(1)Any land which is subject to the public right of access is called ‘access land’.Rights of public in relation to access landCRWA 2000, s 2 gives people a right of entry onto access land (defined above) for the purposes of open-air recreation, provided that:•they enter without breaking any wall, fence or gate, and•they do not contravene any of the restrictions...

Implied easements—common law

There are three different ways by which an easement can be implied at common law:•necessity•intended use•the rule in Wheeldon v BurrowsEasements may also be implied by statute under section 62 of the Law of Property Act 1925 (LPA 1925), see Practice Note: Easements—LPA 1925, s 62 and permissions.The implied grant of an easement at common law arises out of an express grant or disposition of the servient or dominant tenement (or the simultaneous disposition of both). An easement can only be implied where both the dominant and servient tenements have been in common ownership. An implied easement can arise on the grant of a lease, but it is limited to the actual continuance of the lease.The right claimed must be capable of forming the subject matter of an easement. For more information see Practice Note: Easements—nature and characteristics.Implied ‘reservation’Strictly speaking ‘reservation’ is an inaccurate description. In theory, an easement cannot be the subject matter of a reservation as it does not issue out of the servient land sold. A more...

Discover our 108 Practice Notes on Right of way

Lease of a rooftop area to an electronic communications operator—new code

Lease of a rooftop area to an electronic communications operator—new code HM Land Registry Prescribed Clauses [ LR1. Date of the lease [date] LR2. Title Number[s] LR2.1 Landlord’s title number [s] [title number(s) out of which this lease is granted. Leave blank if not registered] LR2.2 Other title numbers [existing title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made] LR3. Parties to this lease Landlord [[OPTION 1 — name of Landlord (not an overseas entity)] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address]OR[OPTION 2 — name of Landlord (overseas entity)] [incorporated OR formed] in [territory of incorporation/formation] (registration number [number]) [and registered at Companies House (company registration number BR[number])] (overseas entity ID [[number] OR not required]) whose registered office is at [address]] Tenant [[OPTION 1 — name of Tenant (not an overseas entity)] [of OR incorporated in...

Report on title—long form

Report on title—long form Property: [insert name and/or address of the Property] (‘Property’) Purchaser: [insert name, address and (if applicable) company registration number of buyer] Transaction: [insert brief details] 1 Executive summary 1.1 Scope of report This report is addressed to you [insert buyer’s name] and has been prepared for your sole benefit in connection with your proposed acquisition of the Property. This report may not be disclosed to or relied upon by any other party without our prior written consent. 1.2 [ Good and marketable title We are of the opinion that, subject to the matters referred to in this report, upon completion of the purchase of the Property, payment of [ stamp duty land tax OR land transaction tax] and registration at HM Land Registry, you will obtain a good and marketable title to the Property.] 1.3 Areas of concern [Insert any concerns about the Property arising from your due diligence]. [Title indemnity insurance [has been OR will be] obtained in respect of [insert...

Dive into our 40 Precedents related to Right of way

Can a landlord/agent enter the common parts of houses in multiple occupation without notice to carry out repairs or show potential tenants an empty room? Would the position change if some tenants had a joint assured shorthold tenancy for exclusive possession of certain rooms as well as the ability to use common areas?

Can a landlord/agent enter the common parts of houses in multiple occupation without notice to carry out repairs or show potential tenants an empty room? Would the position change if some tenants had a joint assured shorthold tenancy for exclusive possession of certain rooms as well as the ability to use common areas? Although Part 2 of the Housing Act 2004 (HA 2004) defines various types of houses in multiple occupation (HMOs), the most commonly encountered situation is where a building consists of more than one unit of living accommodation which: • are not self-contained flats • is occupied by persons as their only or main residence, but not as a single household, and • two or more households share one or more basic amenities, by which is meant a toilet, personal washing facilities or cooking facilities Such accommodation requires a licence under HA 2004 and it is assumed for the purposes of this question that this has happened. It will readily be seen therefore that where a landlord has...

A person has exercised a right of way for 40 years. About 18 months ago the owner of the land fenced off the access. Does the fact that the use of the right of way was disrupted for more than a year mean their claim is defeated, ie once a right of way has been exercised for at least 20 years, is it indefeasible?

A person has exercised a right of way for 40 years. About 18 months ago the owner of the land fenced off the access. Does the fact that the use of the right of way was disrupted for more than a year mean their claim is defeated, ie once a right of way has been exercised for at least 20 years, is it indefeasible? A right of way is a type of easement and may, like other easements, by acquired by prescription. Prescription may arise at common law, under the doctrine of lost modern grant, or under the Prescription Act 1832 (PA 1832). When a claim is made under PA 1832, 20 years' use will suffice to establish a claim by prescription, and use of the way for a period of 40 years renders the claim absolute. It can then only be defeated where it is shown that there was consent or agreement

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Property Disputes weekly highlights—21 November 2024

This week's edition of Property Disputes weekly highlights includes: a Court of Appeal case on the court’s jurisdiction to vary a suspended possession order, Upper Tribunal decisions on the impact on limitation of non-payment of an application fee, and the reasonable repair assumption in determining rateable value, and a High Court case regarding adverse possession and trespass. It also includes the launch of the Law Commission’s consultation on the right to renew business tenancies under Part 2 of the Landlord and Tenant Act 1954, as well as the UK Judiciary’s release of the Senior President of Tribunals’ annual report for 2024.

Private Client weekly highlights—21 November 2024

This week’s edition of Private Client highlights includes: (1) Wigglesworth v Beetson, in which the claimant failed in an action for estoppel and adverse possession; (2) the Hansard Society to host a briefing on parliamentary process for Assisted Dying Bill; (3) Khan v Khan, which considered family property and constructive trusts; (4) analysis of the Autumn Budget announcement to bring unused pension funds and death benefits within the scope of IHT; (5) Palmer v Sans, which found that there was no transaction at an undervalue where property was already held on trust for the transferee; (6) KA v FA (The Secretary of State for the Home Department intervening), where the court recognised an overseas adoption notwithstanding failure of common law test; and (7) Kireeva v Bedzhamov, in which the Supreme Court has confirmed the application of the immovables rule to English property.

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