If you are thinking of buying a property with a public right of way over it, you may want to know more about what this will mean for you and your home.

A public right of way allows any member of the public to cross land using this path and will often have arisen because of many years of use. The route could be a footpath, bridleway or byway and so could be used by walkers and in some cases riders, cyclists and others.

Public rights of way are marked on maps and will usually be revealed in the local authority search that your solicitor will carry out on your behalf when you buy a property.

How does a public right of way arise?

Implied right of way

A right of way can be implied where it is necessary for someone to access another property across privately owned land. This will not usually be a public right of way, but could just mean that neighbours will be using your land to access their home.

Express right of way

This is a right of way that has expressly been granted in a deed. It will set out where the right of way is and the terms of use, for example, who can use it and whether it is for use on foot or in a vehicle.

Prescriptive right of way

Most types of public rights of way will be prescriptive, meaning that they have arisen through length of use. Where a footpath has been used continuously for twenty years or more and has not been challenged, a legal right of way exists. This means that people can pass and repass over the land unobstructed.

Open access land

There is also what is known as open access land. The Countryside and Rights of Way Act 2000 (the CROW Act) allows the public the right to roam across areas of open country that include mountains, moors, heathland and downland as well as registered common lands. 

Where land has open access, people can visit on foot and walk, sightsee, birdwatch, climb and run, although they should follow the Countryside Code. They can bring dogs, but should keep them on a short lead between 1 March and 31 July. It is sometimes possible to exclude dogs, for example, from lambing fields.

Open land does not grant access to land within 20 metres of a dwelling, nor does it include gardens. 

Rights of way and public liability

If a right of way crosses your land, you need to take care not to take any actions that could injure members of the public. If you are negligent and someone sustains a personal injury as a result, you could find yourself liable and required to pay compensation. 

Your liability could be greater where the public stray off of the public route and are injured elsewhere on your land, so it is recommended that you try to keep the public route clear and obvious. This will also help prevent any further right of way from developing over time and avoid any issues of trespass.

Public rights of way are usually maintained by the local authority, so if there are any issues with the state of the right of way across your land, you are advised to raise this with them as soon as you can. 

You are responsible for:

• Keeping the right of way free of obstruction, to include trimming hedges and overhanging branches
• Keeping stiles and gates in good repair, although you can consult the local authority on this and they may contribute towards the costs in some areas
• Ensure paths are reinstated if they are obscured by works or ploughing or the growing of grass crops

What can you do as a landowner with a legal public right of way across your land?

There are some restrictions on how you may use the land where a right of way exists as the landowner, as follows:

• You cannot erect a gate or stile with consent from the local authority
• You cannot put up misleading signs to try and stop people from using the right of way
• You cannot try to intimidate people, for example by letting a dog protect the right of way
• You cannot block a public right of way
• You are not permitted to grow crops over a right of way except for grass
• You may not put dairy bulls aged 10 months or older where a right of way exists

If you wish to carry out any works which will disturb or interfere with the public right of way, you must seek consent from the local authority. They may give permission for a temporary closure to take place. An alternative route should be provided wherever possible.

Diverting a public right of way

It is sometimes possible to apply to the local authority to have a public right of way diverted. A public path diversion order may be made if it is in the interests of the landowner and where:

• The diversion would not be substantially less convenient to the public; and
• The diversion would not change any end point of the path other than to another point on the same road or a connected road.

In considering whether to grant an order, the authority will take into account the following:

• Whether the physical features, such as the gradient, path width and path surface, of the proposed route are similar to or better than the original
• Whether the new route makes the way considerably longer
• Whether the new route lowers the quality or diversity of views for the public
• Whether the proposed path will exclude features of interest
• Whether the new path will cost more to maintain or have any potential hazards for users
• The new route should include improved access for those with impaired mobility, such as gates and ramps rather than stiles and steps

Contact our property solicitors in Beverley, Hull and York.

If you would are thinking of buying a property or you have any questions regarding rights of way that you would like to ask our East Yorkshire legal team, ring us on 01482 300 200, email us at welcome@lockings.co.uk or fill in our contact form and we will call you back promptly for a FREE initial chat.