There are many roles that building surveyors play when it comes to ensuring that construction projects, building surveys and boundary disputes are solved in a way that is fairest for all parties involved.

The most common example of this is a party wall dispute, which is an issue regarding work which takes place on a shared property boundary, but there are other kinds of boundary issues that can occur.

These include issues surrounding hedges and trees growing across property lines, encroachment of the property boundary, and issues regarding right of way.

Of the different types of boundary issues, issues surrounding rights of way can be the most complex for neighbours, legal representatives and surveyors to solve, due to the often-situational nature of many rights of way.

To help with this, here is an explanation of the right of way principle, where disputes might emerge and how a surveyor may help with such a situation.

 

What Is A Right Of Way Dispute?

A right of way is a form of easement, which is the legal right of one landowner to use the land of another person in a specific way or for a specific reason.

In most cases with homeowners, it involves the use of a shared pathway which goes through another person’s property. 

There are generally three ways in which a right of way is established:

  • Via an explicit agreement between two neighbours that allows the owner of one property to use the land of another, often registered in the legal title. This is usually in cases where land is sold in parts but the owner keeps a right of way to ensure that they can still use the land they own.
  • By necessity. If the only way to access a piece of land is through another person’s property, then it is implied that said person has the right of way, as long as they meet certain criteria.
  • By prescription. If a right of way is used repeatedly, openly, and without secrecy, force or interruption for at least 20 years, there is said to be a right of way established.

 

Where Can Right Of Way Issues Emerge?

A recent example of a right of way issue can be seen in the recent case between Barry and Sarah Dean and their neighbours Claire White and Bidjan Nathan, regarding two properties in the Sussex village of Ditchling.

The Deans, who had lived in the village for over four decades, had always used a strip of land on a neighbouring property as a right of way to allow them to access their front garden without difficulty.

They have alleged that Ms White and Mr Nathan claimed the neighbours were trespassing and put up a taller fence in front of an existing five-bar fence to block their access to the right of way they were using, telling them to instead carry their lawnmower through their house or down garden steps.

This case is somewhat complicated and may require the help of a surveyor to determine the claim of the right of way. If it could be proved that they have been using it for four decades without incident it could be claimed by prescription, whilst there might be a case for the piece of land becoming a right of way out of necessity.

Ultimately the courts will decide, with the help of a surveyor as an expert witness.