October 03, 2011
In recent times, the need for landowners to be vigilant over their property is increasingly important. There are various methods in which owners can either lose ownership of their land or 3rd parties can acquire rights over it. Examples are where land is adversely possessed, compulsory purchased or dedicated as a highway.
There are three predominant ways in which footpaths, rights of way or highways are created. The first is where there is a presumption that the land has been dedicated as a highway, the second is creation by easement and the third is where compulsory powers are used.
There will be a presumption that land has been dedicated as a highway if it has been used by the public at large (not just a limited group) for long enough to justify an inference that the landowner intended to dedicate as such. The only prevention is if the presumption can be rebutted by the landowner showing that they either stopped people using the highway by turning them away or putting obstacles up, they restricted the use of the highway to a particular section of the public or the landowner lacked capacity to dedicate the land.
The second method by which a right can be acquired over someone’s land is by the creation of an easement. Where the owner or occupier of one parcel of land has been using his neighbour’s land without force, secrecy and permission, an easement will be created. Similarly, a right is granted over the neighbour’s land if that right has been used for at least 20 years without any lawful explanation. Unlike the highway which is granted to the public, an easement is a right only enjoyed by the owner or occupier whose use created it.
Lastly, the Local Authority can make an Order creating a footpath or bridleway over an owner’s land. The Authority can only order the creation if they feel there is a need for a path. They must have considered the impact on the rights of the landowner and still be of the view that it would add convenience or enjoyment to a substantial area of the public or residents in the area. Unlike the two methods outlined above, if a path is created by a compulsory order, compensation, so far as the value of the interest of a person in the land is depreciated or they suffer damage, is provided for.
In light of the above, therefore, it is paramount that if a landowner wishes to prevent footpaths or bridleways being created over his or her land, they make sure that as soon as they discover people walking over it, they actively and obviously demonstrate that they do not want any path to be created.
Spratt Endicott Solicitors have a team of specialists who provide advice on all property related matters. For more information, please contact Guy Stephenson on 01295 204059 or email Guy at gstephenson@se-law.co.uk.
