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Customer Query:

A client sought advice concerning his rights and obligations relating to a Right of Way shown on his title passing through his land. A legal opinion was obtained that is reflected in the notes below:

"As you are now the proud owner of a block of land which is subject to a right of way, you've asked me to write you a letter setting out your rights and obligations in respect of a right of way, so that you will have some idea of what you can do and can't do.

You are the owner of the strip of land concerned, but in legal terms it is subject to a right of way. In more technical legal terms, you are known as the owner of the servient tenement and your neighbour, who has the owner of the right of way, is known as the owner of the dominant tenement. Her property is called "the dominant tenement" but in this letter to try to simplify it, I will simply refer to the owner of the servient tenement as "you" and the owner of the dominant tenement as "your neighbour"

The starting point in any consideration is, of course, that your neighbour has an absolute right to go and come back across any part of the right of way at any time, with vehicles or otherwise, and her visitors have a similar right. You also have a right to go across the right of way at any time and you may in fact use if for your own purposes provided you do not obstruct your neighbour's right. It's hard to imagine what you could do on it which wouldn't obstruct your neighbour's right, but there are one or two things I should mention which are perhaps relevant.

I enclose herewith a note of a case Stewart vs. Cooper recently heard before Mr. Justice Neasey. It relates to putting a gate on a right of way in a country area where it was necessary to prevent cattle straying in and out. The real point of the case, I think, so far as it concerns you is that it makes it clear that although you may, in fact, obstruct the right of way to some minimal degree, the law will only interfere if there is "substantial interference with the enjoyment of the right of way". I believe that you would have a right to put a gate at either end of the right of way and were the property in the country, I would say that you could put locks provided you supplied a key. In s suburban situation, I do not think locks are normally appropriate, and I believe it would be an unwarranted interference with the convenience of your neighbour, unless there was some good reason why a lock was required.

Because your neighbour has a right to go across any part of the right of way, it is hard to say that you can plant and maintain trees, shrubs etc., although I do believe that creepers on and close to a fence would not interfere with the use of the right of way, and as your particular right of way is very wide, it may be that you could reasonably plant a number of other bushes etc. I think the common sense approach would be to discuss what you intended to do with your neighbour and get agreement, if that were possible. Otherwise, I would have some doubts of your right to complain even if your neighbour drove over shrubs etc., which you had planted.

It could be that you could erect an open carport by putting a roof high above the right of way. I think any such roof would have to be supported at each edge of the right of way and not by a post or posts anywhere across the actual right of way. Also, the height of any such roof would, I believe, need to be sufficient for the reasonable requirements of the neighbour. Certainly, I think it would have to allow clearance for any vehicles which would reasonably need to use the right of way, such as, perhaps, wood lorries or furniture vans etc.

Neither you nor your neighbour have any obligations with regard to maintaining the right of way in such a condition that it will be useable by vehicular traffic. Either of you have the right to do this, if you wish. I do not think you could complain, for instance, if your neighbour wished to concrete the right of way, but certainly you would be under no obligation to contribute to the cost.

There is no requirement for the right of way to be fence. You have a common boundary with another person and your can, of course, fence this by join arrangement with that person in the normal way. Any internal fence on your property which was on the inside limit of the right of way could be put up by you, if you wished, but your neighbour has no right to fence that line nor you to call on her for any contribution if you decide to put a fence down that line. It would be simply an internal fence on your own property, and completely your own responsibility.

I think this is the best I can do by way of general essay on "rights of way" at this stage. However, if there are any questions that occur to you which I have not covered, or if I have not made myself clear in any of the things I have written, please let me known and I'll endeavour to rectify the situation.

N° 3 Stewart vs Cooper, J Neasey

Right of way. Plaintiff claims declaration that he is and was at all material times entitled to erect 2 gates across right of way passing across his property to the defendant, his friends, servants and agents, from any unreasonable use of the right of way by leaving the gates or either of them open in breach of the duty or obligation to use such right of way reasonably, and by way of damages the cost of repairing one gate damaged by the defendant. Primary purpose for having gates is to prevent cattle straying in and out.

Defendant seeks by way of counter claim a declaration that the gates constitute a nuisance and/or unlawful obstruction on the right of way, and injunction directing the plaintiff to remove one of the gates, and a further injunction restraining the plaintiff from erecting gates on or otherwise obstructing the right of way. In the case of a right of way over private land, the owner of the dominant tenement does not have a right of access to and use of the right of way wholly unobstructed by any limitation placed upon such use by the owner of the servient tenement; only "substantial' interference with the right of way is actionable - that is, one which is "real substantial interference with the enjoyment of the right of way"; and, that as long as the owner of the dominant tenement is given reasonable access to and use of the right of way, there is no substantial interference with the enjoyment of it.

One of the primary needs of those who use rural land for stock grazing purposes is to prevent stock straying into or away from such land. Erection and maintenance of gates at each end of the right of way in a closed but unlocked position at all times, does not, and would not constitute a substantial interference with the enjoyment of the right of way. Declarations and injunctions sought in terms similar to those declared and made by Napier in Gohl v Hender (1928) S.A.S.R.325. Judgement for plaintiff on the claim and counter claim."

Our Thoughts:

SIMPLY:

This means that if you have a Right of Way shown on your title you are not allowed to obstruct the use of any part of that right by the person who enjoys that right, even though you own the land.

HOW WE ASSIST:

The extent and location of a Right of Way on the ground can sometimes be difficult to determine. They are also sometimes difficult to interpret. We can interpret the document, peg out and map the location and give you general advice concerning your rights.