In the recent Court of Appeal decision in Gore v Naheed, the court considered the extent to which a right of way in favour of one property could be used to gain access to another property. Whilst on the facts of this case it was found that a driveway could be used to access to an adjacent parking area, it is important to remember that this will often not be the case: you can generally only use a right of way to access the land which the right attaches to.
What is a right of way?
A right of way is a type of easement. It is the right that the owners of one area of land (the benefitting or “dominant” land) have to pass over another area of land (the affected or “servient” land). A right of way can be extremely important for the benefiting land: without it, it may be impossible to reach the benefiting land without trespassing on someone else’s property.
What land benefits from the right of way?
It is very important to establish what a right of way can be used for: using it for any purpose that goes beyond this amounts to a trespass and the owner of the affected land may get an injunction to stop this use and make a claim for damages.
As a part of this it is necessary to establish the physical extent of the easement. A right of way granted for access to the dominant land cannot also be used to access neighbouring land.
For example, the green land has a right of way over the yellow land, using the road shown in red. This right of way can be used to access the building which has been built on the green land. The owner of the green land wants to buy the pink land and build another building on it, extending the roadway from the green land, up into the pink land. However, only the green land has the benefit of the right of way. This means that the owner of the yellow land can prevent someone from using the right of way in order to reach the pink land. If this is the only way to get from the public highway to a building built on the pink land this is a significant issue which may prove very expensive to resolve.
When is it possible to use the right of way to access additional land?
Though the starting point is that a right of way can only be used to access the dominant land, it is sometimes possible for an easement to be used to access additional land. What is permitted will turn on the circumstances and the wording of the easement.
In Gore v Naheed the easement gave the right to use a driveway “for all purposes connected with the use and occupation” of the building on the dominant land. The owner of the dominant land subsequently acquired a small adjoining plot, which he built a garage on. The garage was used solely for parking in connection with the use of the building on the dominant land.
The Court of Appeal upheld the County Court’s judgment that the right of way could be used to access the garage. The fact that the easement allowed use of the driveway “for all purposes connected with the use and occupation” of the dominant land mean that, while the garage was in use as parking for the dominant land, it fell within this. However, if the garage was subsequently sold off separately (or used for an unconnected purpose), it would no longer benefit from the right of way. The Court of Appeal also made it clear that if the easement had been worded differently (for example limited to “the purposes of accessing the building”) the right of way would not have extended to accessing the garage.
If you are taking or granting an easement it is essential that the wording of the easement is appropriate and reflects what is intended: if the right of way should be limited only to the dominant land, the easement should make this clear; equally, if it’s intended that neighbouring property being used for an ancillary purpose be included within the right this should be specified.
If you are acquiring land which does not have direct access to the highway it is essential that you check whether any rights of way that exist are sufficient in extent and scope. Take particular care where you are acquiring property which adjoins land already within your ownership: do not assume that your existing right of way will allow you to access the additional land.