A right of way is an entitlement to travel across a route regardless of land ownership and is generally one of movement. As such, it does not normally include rights to stop, load, unload or park for any reason.
Often, Bermuda house holders have a right of way across estate roads or a neighbour's land. Such rights are usually established either in writing by deed or by proving at least 20 years' uninterrupted use, as of right.
A deed, properly documenting the right, is preferable. If not, at the very least affidavits will be required confirming at least 20 years' use as of right, together with sub division planning consent.
A claim to an undocumented right of way fails if it is exercised with another's permission or if it is secret or forceful. An undocumented claimant can rely on use by a third party if the third party's use benefits the claimant's land --- for example, postal deliveries along an estate road or a track.
After a right of way is established, disputes can arise as to the extent of the actual entitlement. If a right of way is altered practically and substantially, so as not to be exercised as conveniently as before, the user may have a successful claim. A claim might arise against the land owner or a third party causing alteration.
A claim for interference is assessed based upon the purpose for which the right of way was originally granted. For example, access to and from a single family home implies a right for the family, visitors, and usual domestic suppliers and service providers to come and go from a home at all times. Depending on the wording of the grant, such rights may not be expanded beyond a single home – for example, where that home is converted to a development of, say, 20 condos.
As an exception to the general rule if a right of way leads to a dead end, stopping may be permitted for as long as is necessary to load and unload goods, but only if there is no following loading or parking area.
Unauthorised parking in breach of a grant allows the land owner a damages claim for trespass, and restraint by an injunction. A damages claim requires demonstration of actual monetary loss resulting from the trespass. Monetary loss for unauthorised parking, adjacent to a right of way, may be difficult to establish. An injunction may be easier to obtain and a better solution because if parking continues for 20 years or more, there may be a successful claim for a right to park.
A landowner might be unwise to unilaterally extinguish a right of way for abuse such as parking. The person with the extinguished right could then have a claim against the extinguishing landowner. Bermuda British Virgin Islands Cayman Islands Guernsey Hong Kong Isle of Man Jersey London Mauritius Seychelles Shanghai Zurich
Sub-division requirements of the Development and Planning Act 1974 provide that anyone who is intending to convey, grant or otherwise transfer an interest in land for a term of 21 years or more must obtain planning consent. Consequently, the grant of a right of way for 21 years or more requires planning consent.
The Occupiers and Highway Authority Liability Act 1978 establishes potential liability for an occupier of land across which there is a right of way. Liability may be avoided if reasonable care is taken to ensure that the right of way is not dangerous.
In occupier's liability cases consideration is given to the character of the way, the traffic or persons expected, as well as the standard of appropriate maintenance, the state of repair to be expected, whether the repairs could reasonably have been completed before injury, and what warning notices were displayed, if any. If an occupier arranged for another person to carry out maintenance, it must also be demonstrated that proper instructions were given by the occupier.
Disputes may arise in relation to very old rights that were granted before motorised cars or trucks moving faster than walkers became common. The right of way may be defined as too narrow, possibly unpaved, or otherwise unsuited for modern vehicles. Users may want wider access and paving with concrete or tarmac, all of which the land owner may view as undesirable.
In case of a modernising dispute, the wording of the grant is to be carefully considered – and, unless the grant expressly allows, modernisation is not permitted. Co-operation to ensure that the aims of the original parties to a right of way are achieved should avoid tension between owner and user.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
