5 top tips for defending a right of way claim

Your neighbour says they have a legal right to cross your land because they have done so for years. Before you panic, or put up a padlocked gate, read our five top tips for defending a right of way claim.

What is a prescriptive easement?

A "prescriptive easement" is a private right of way (or other legal right over land) gained through long use rather than through a written agreement. If someone has used a route across your land for long enough, the law may treat them as having a legal right to keep using it, even though no one ever formally granted it.

To succeed, the person claiming the right usually needs to show that their use was:

1. Long enough i.e. continuous use for at least 20 years;

2. Without force i.e. not by breaking locks, climbing gates or ignoring objections and signs;

3. Without secrecy i.e. obvious enough that a reasonable landowner would have noticed it; and

4. Without permission i.e. used as if they had a right to cross the land, not because they were given authorisation by the landowner.

The use must also benefit their own land (for example, access to their house or garden) and be by one landowner over another's land.

Most people first hear about a right of way claim via a notice from the Land Registry or a letter before action from a solicitor. Either way, the clock is ticking, and what you do next matters.

Our 5 top tips

1. Check your home insurance first

Before you reply to anyone, dig out your home insurance policy. Many policies include legal expenses cover that can pay towards the cost of defending a property dispute. You may also have a title indemnity policy from when you bought the property.

Insurers usually have strict notification rules. Contacting your neighbour, admitting anything or instructing a solicitor without telling them first could put your cover at risk. We can help confirm whether you have cover and assist with notifying your insurer correctly before you take any other step.

2. Don't ignore the deadline

A Land Registry notice sets a short deadline to object, and if you miss it the right of way may simply be registered against your property. Diarise the date as soon as the notice arrives.

An objection must be in writing and should set out your grounds. If the dispute cannot be resolved, it is referred to the First-tier Tribunal (Property Chamber). A prompt and considered response helps you avoid court and keeps costs down.

3. Gather your evidence early

Right of way disputes are won and lost on evidence of what happened on the ground, often decades ago. Start collecting:

• Old photographs, including historic aerial and satellite images

• Evidence of gates, fences, walls or locks, and when they went up

• Contact details for previous owners, tenants and long-standing neighbours who can remember how the land was used

• Your purchase paperwork, including the seller's answers to pre-contract enquiries about rights and disputes

• Any letters, emails or conversations about the route

Memories fade and witnesses move away, so the sooner you start, the better.

4. Look for gaps in their case

The burden is on your neighbour to prove every element of their claim. Common weak points include:

• Permission: if you or a previous owner allowed the use, it was not "as of right"

• Gaps in use: periods when the route was blocked, unused or the property was empty

• Objection: complaints, letters or signs showing the use was contested

• Change of use: a footpath used on foot cannot simply become a driveway for vehicles

• Common ownership: if both properties were owned by the same person during the 20 years

One strong point can be enough to defeat a claim.

5. Put up a sign now

A sign won't defeat an existing claim based on 20 years of use, but it can stop a new claim from building up in the future. It also helps show that any current use is with permission or against your wishes. The sign needs to be worded, located and recorded correctly in order to be effective, and we can advise you on this.

How we can help

Right of way disputes can be stressful, expensive and damaging to neighbour relationships, but early advice makes a real difference. We can check your insurance cover, review a Land Registry notice or letter before action, and help you build a robust defence.

Contact us at info@lawcollective.co.uk for an initial discussion.

This article is for general information only and is not legal advice. Please contact us for advice on your own circumstances.

We are not a law firm and, therefore, are not authorised or regulated by the Solicitors Regulation Authority. We provide legal advice through The Law Collective Limited, company number: 07729699