Holding on to one’s rights

JEANETTE DENNIS, agriculture consultant at Ashton Graham, highlights how land owners can prevent claims of rights of way or adverse ownership

ANYONE who owns a house or farm, or even just a small area of land, will be interested in two “top tips”, on land ownership and rights of way.

We are often asked how landowners can stop people claiming ownership of part of their land. We are also asked how land can be claimed without purchasing it.

With some exceptions, generally, if someone has continuously and exclusively occupied an area of land, without the landowner’s consent, and that occupation has been open, with no payment made, after some years (10 for registered land, and 12 for unregistered land), they may be able to overturn the original landowner’s paper or registered title, and claim ownership.

The process involves preparing statutory declarations, and persuading the Land Registry that full “adverse” occupation has occurred. A solicitor can advise at the outset on the chances of success, and help with the process of claiming ownership.

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Generally, a new right of way can arise if a member of the public or a private individual has been crossing, say, part of a garden, a footpath or a grass verge for at least 20 years, as of right and without consent. This could be a public or a private right of way, depending on the circumstances.

When we act for landowners, we can prevent this from happening, by using two simple devices: letters of consent, and a Deposit of Plans under the Highways Act 1980.

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A letter of consent can be used where you know the person (such as a neighbour), and you agree to grant them right of way, or a right to occupy part of your land.

It can be as simple as a landowner writing a short letter to say that he owns the land, and that for the time being he does not object to the other person using an area for, say, garden refuse, or as part of a garden, but not for business use.

By giving that consent, the other person cannot later claim that he occupied an area as of right and claim adverse possession.

You can also use a letter of consent for a private right of way, such as using an access or letting someone ride or walk around fields where there is no existing public right of way.

A Deposit of Plans can be used where you are not sure who is using or creating a public right, as it tells the local authority that, as the landowner, you have no intention of creating a public right of way. Without this, and in the absence of any other evidence, it will be difficult to show that the landowner did not intend to create a public right of way.

If these two “top tips” are used wisely, you should have happy neighbours and villagers, and avoid costly problems in the future.

This article is for general information purposes only and does not constitute legal or other professional advice. You should not act or rely upon this information.

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