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Business Clinic: What rights does the right of way confer?

Whether you have a legal, tax, insurance, management or land issue, weekly farmersBusiness Clinic experts can help.

Here, Russell Reeves, partner at Thrings, discusses rights of way.

See also: Business Clinic: who is responsible for maintaining the fences?

Q: A dwelling house that runs along the side of our farm driveway has just been granted a change of use to become a beauty salon.

At the front there is a gate leading to the side of the road, to the side there is a gate leading to our driveway.

The title deeds to this dwelling state that the title owner has a right of way and for all purposes on the side of our driveway leading to the side door.

Can she ask the general public (customers) to use this entry or is it only for the title owner to use?

The accommodation has been residential for 11 years and before that it was used as an office with only one person using it.

A: The first thing to say is that the planning regime is entirely separate from property rights, including rights of way.

From your question, you don’t seem to question the legality of the change of use under planning law and so I’m assuming you are legal content.

Instead, your question is whether beauty salon customers can access the beauty salon through your player.

The answer will depend on whether the land on which the beauty salon is located has a right of way and if so, what use is permitted under its perimeter.

It makes no difference that beauty salon customers can access through the front door rather than using your drive-thru.

There are several ways to create rights of way. These include prescription (commonly referred to as long duration of use) and implicit subsidies.

Based on what you say, these don’t seem relevant here, but would require review in order to rule them out.

You have identified a right of way “in the deeds” which you claim is “for all purposes”. Rights of way in deeds are known as express grants.

The question of what kind and how much use of the right of way is authorized by the express grant depends on what the deed says.

In other words, it will depend on the proper meaning and interpretation of the act.

So this is an exercise in interpreting the express grant to know its true meaning and I would need to see the deed in its entirety in order to offer a considered opinion.

However, as a general legal principle, subject to any restrictions arising from the terms of the grant or surrounding circumstances, a right of way may be used in the manner authorized by the grant for any purpose and in any what measure at the moment. required for the land benefiting from the right (the beauty salon) or part thereof, regardless of the destination of this land on the date of granting.

On this basis, changing the use from a dwelling to a beauty salon would make little difference.

A full review of the deed and circumstances surrounding the initial grant of the right of way should be made in order to properly advise you.

For example, sometimes the wording of the deed or the circumstances can be used to argue that the scope of the right of way is narrower than it appears.

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