A Right of Way will be widely interpreted in the absence of indications to the contrary.
But a recent case* has highlighted how just one word can limit the use to which a right of way can be put and how careful one has to be in the words used.
Mr and Mrs Stewart owned Walnut Cottage which had a right of way over Mr McGill’s roadway ‘“on foot and with or without private motor vehicles”.
That one word ‘private’ turned out to be so controversial.
Mr McGill argued that such right was limited to vehicles in the Stewarts’ ownership and for domestic purposes only.
Fortunately for the Stewarts, the court interpreted the right as also allowing any vehicles in connection with the use as a private dwelling i.e. to include visitors, post vans, delivery vans and would even extend to tankers used for emptying septic tanks.
But the court said it would not extend to construction vehicles (e.g. for significant improvements or new construction).
The lessons include:
- think about every word being used in legal documents;
- be aware that not all Rights of Way are the same.
It is always best to define accurately the land over which a right of way can be exercised (including its width). In addition, there is no right to go onto adjoining land, even to get a vehicle around a tight corner and there is no right to ‘oversail’ neighbouring land e.g. with a crane arm. That would be trespass.
* McGill v Stewart & Anor  EWHC 3387 (QB).
Sarah Burns, Solicitor and Associate at Nelsons
Martin Jinks, Solicitor, Notary and Partner at Nelsons
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