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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25424
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Our cottage was built circa 1840, it was the workers cottage

Resolved Question:

Our cottage was built circa 1840, it was the workers cottage to the main farm cottage. A lane runs from the farm cottage down to and past the workers cottage onto a duel carriageway. Our workers cott had an easement to allow us to pass the main farm cottage either on foot, car etc unfortunately when the current owners bought the farm cott they did with the agreement of the owner (who's now deceased) to terminate by deed the easement. This was done less than ten ago. Before we proceeded to purchase our cottage the workers cott, we asked if we could have permission to walk and ride through a slightly deviated route from the original track but a route that rejoined the track next to the farm cottage, this route is actually an ancient footpath but is not on the definitive map, however it shows on our old deeds. I want to reopen the easement for our benefit of gaining access to quiet roads for walking, cyling and riding with my three young children. How can I do this? Also I'm told by local people that the track that runs past our house and through the farm next door was used by all and as if it was a public right of way, how can I prove this? Is the old footpath still there and can I ride a horse on it? There are three avenues there can you tell how to deal with each. Thanks you. Caroline.
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask do you have access to your property using another track to the one you refer to please?

Customer:

hi.

Customer:

hello.

Joshua :

Hello. I hope you are able to see the above posts?

Customer:

our property has vehicle access directly off a duel carriageway (a38) this is not suitable for walking, cycling or horse riding. the same track we access our property from continues past our cottage through our neighbours farm (which is built around the track, so the track doesn't interfere with their enjoyment of their property) and joins a B road, our neighbour has their access off this B road using the other end of the track. historically this track accessed all the properties from the B road and there was a easement in the deeds to secure this. This easement was terminated in or 2003/4 when our neighbours bought the farm. we bought this property 6 yrs ago with a verbal agreement to use an old footpath (not showing on definitive map) in order to access the quiet back road.

Joshua :

Thank you.

Joshua :

There are two principal ways in which you can consider proceeding. You could look to establish a prescriptive right of way over the land in question. However from what you say I consider this may be difficult as you need to show 20 years of continuous use without permission and without secrecy. If the formal easement was given up less than 20 years ago by a previous owner this will be challenging in the least I fear.

Joshua :

If however you can show that other members of the local public have used the track then there could be a case for establishing a public right of way. I must however apologise. Clients have just arrived for an appointment. With your permission may we resume in an hour or so?

Customer:

is the information clear now? basically I want access out with my horses, on foot or cycle to the quiet road by either reinstating the track that our property enjoyed vehicle access as well as riding etc or through the old footpath wich is through my field and joins the same track.

Customer:

hi im waiting for your answer

Customer:

im told I can use the fact that my property enjoyed the easement since it was built over 100 years ago, are you saying I cant

Customer:

you said two ways of proceeding? what is the second?

Customer:

yes of course

Joshua :

I do apologise the for the interruption.

Joshua :

Before we leave the issue of the private right, you mention that the previous owner extinguished the right. How long ago roughly did this happen and how long have you lived at the property?

Customer: Haven't walked up the track in the last four years that should say. What about the footpath? Can I use that as access? Is it still a footpath even though it's not showing on the definitive map?
Joshua :

If "the public" which may in practice be you and others in the area have used habitually the path over which you wish to claim rights as a right of way for a period in excess of twenty years and you can obtain statements from locals in this respect then it is possible to apply to the local authority to establish the path as a public right of way.

Customer: Would I have to get a partition signed or a statement from each person? How many names do I need? What would be the likely outcome? Does it matter it has been blocked for the last ten years?
Joshua :

You need to demonstrate on the balance of probability that a significant number of members of the public (in practice as above it will be locals) have and do habitually use the path as a right of way. If you can do so the council can include the same on the definitive map by applying for a Definitive Map Modification Order under the Countryside and Rights of Way Act 2000

Joshua :

If you can show that the right of way is an ancient right of way then this may also be grounds to do so.

Joshua :

In order to apply you need to typically demonstrate 20 years of continuous use. It need not necessarily matter that the land is presently blocked providing you can show a 20 year block period of continuous use at some point.

Joshua :

You need to show that a significant number of locals have used the right of way. There is no definitive number that is or is not sufficient but ideally a decent single digit number of persons or better still double figures would be ideal.

Joshua :

If the council is satisfied that the public have used the right of way for 20 years or more then they can update the definitive map to include the ROW

Customer: Are you talking about the footpath or the track because they are slightly different routes. The footpath runs out of my field into the neighbouring yard, joining the 'track' this footpath in on our old deeds showing as a footpath but it stops halfway across my field. The track was used,I'm told, by various locals as a through road by car and horse, I don't know if it was a right of way I'm only told it was a green lane.
Joshua :

The same principles apply to both the footpath and the track. If you can show 20 years of continuous use by the public then you can consider a modification order as above.

Joshua :

It will be necessary for locals who are able to give evidence to sign affidavits confirm the period of their use and the purpose and regularity of use.

Customer: Ok that's useful to know. Just to clarify, it doesn't matter that either track hasn't been used by the public in the last ten years? I can still apply as mentioned with a good chance of opening the right of way?
Joshua :

If both track and path have been closed off during the last 10 years, lack of use in the last 10 years can operate to prevent a public right of way being established. However it does not prevent a private right of way being established providing you can show a block of 20 years of use by one or more owners of your property over time.

Joshua :

The rules are different depending upon whether you are establishing a private right or a public right. For public rights the 20 years is calculated retrospectively from the date the application is made. For private rights, you can potentially register a private right if you can show 20 years of continuous use by one or more owners in a block of time even where the use is not continuing.

Customer: I can't show a block of 20 years I've lived here for six years. The public used both path and track in the 50 plus years prior to it being blocked, where do I stand
Joshua :

If both tracks have been blocked for 10 years regrettably this is likely to preclude establishment of a public right of way I fear. If you can obtain evidence from neighbours that previous owners of your property used and enjoyed either track then you could use this evidence to apply for a provate prescriptive right over the track that the previous owner did not voluntarily give up.

Customer: Ok, is there a time limit on re opening rights of ways if they have been blocked for some years? I read somewhere you have 15 years to prove it was used by the public and if you got enough signatures to back this up (circa 15/20) it would be relatively easy to reopen such a path or track. Also I was of the understanding that 'once a right of way always a right of way 'with respect to the path, is any of this correct. Forgive I need to have it absolutely clear before going in guns blazing so to speak.
Joshua :

If you can show 20 years of prior use by the public you can make an argument of "presumed dedication" at the point and that the closing of the path is therefore unlawful. There can be some difficulty in producing evidence to support presumed dedication though because of a lack of physical evidence of a right of way. Each local authority is required to publish a policy as to assessment of public rights of way applications and this would be a useful policy to obtain from them to ascertain what evidence they would require you adduce to demonstrate a past presumed dedication so you can ascertain whether it would be possible to satisfy their requirements.

Customer: Ok thank you. Am I able to come back to you after I have looked into what you have said?
Joshua :

Yes of course. I am very happy to continue to assist if you have further questinos.

Joshua and other Property Law Specialists are ready to help you

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