Q&A - Can right of way be lost because neighbour has blocked access?

Q: My mother lives in a terraced house. External access to her rear garden is via a shared path or directly through her own French windows. She wasn't worried when her next door neighbour erected a fence two years ago, effectively blocking the shared path to the garden. However, another neighbour says she could lose this right of way unless she opposes the fence. Is this correct?

A: Firstly you should establish whether there is any legal right of way to the property. This may be expressly shown on the property deeds as an "easement". If the deeds show no easement an implied legal right of way may be established by providing evidence, for example, that access to the garden is a necessity, that an easement must have been intended or that the path has been used continuously as a right of way for at least 20 years.

With an easement your mother may insist your neighbour removes the fence obstructing her right of way. That access has been blocked for two years is likely to be irrelevant. Easements can also be abandoned. They can, for example, be removed by deed, removed by evidence of intention to abandon, or by a change of circumstances rendering them impractical. Any easement your mother may have may also be abandoned if she agreed to the fence. If she is aware of the fence and does not object to it, she leaves herself open to the argument that she has abandoned her right of way.

Your Dispute Resolution Solicitor can check your deeds and advise on whether your mother has an easement and what course of action is relevant. It may be that she could remove the fence herself or seek a Court Injunction requiring the neighbour to remove it.

Article: 04/10/2010

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Robert Williams

Robert Williams

Partner and Complaints Handler

Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham