Q&As

Is it possible for a servient owner to divert a prescriptive right of way without liability for infringement?

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Produced in partnership with Howard Lederman of 42 Bedford Row
Published on: 14 November 2023
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This Q&A has assumed that the right of way has not been confirmed in a contract or Deed and there are no express terms allowing for the way to be diverted or moved; this answer addresses private rights of way and not public rights of way

A right of way does not give exclusive use of the land over which it relates; any diversion by the servient owners will only give rise to liability if it prevents the right of way from being substantially and conveniently exercised as before.

A few definitions first. For every easement including a right of way there is a 'dominant' owner of land (whose land has the benefit of the right). There is a different owner of 'servient' land, over which the right held by the dominant landowner is exercised. The easement binds successors in title of the 'servient' land.

To obtain a right of way by prescription, there must be continuous

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Jurisdiction(s):
United Kingdom

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