A previous article considered the implications of intensification of an express Right of Way.
An express right is when the right of a user has been clearly and explicitly detailed and recorded, usually in the title deeds.
There is clarity as to the scope, scale and purpose of the use and the parameters of said use are apparent.
The existence of the right is not usually in dispute as the focus is more appropriately pointed at the construction of the grant and whether the current use falls within the scope accounted for in the first instance.
In such cases, identifying intensification is a factual exercise and the compare and contrast exercise is more readily achievable.
A dispute over an expressly recorded right sees a focus on impact of the intensification, with an early narrowing of the issues in contention.
But what if the right of way suffering / benefiting from intensification is not recorded?
What if those parameters are not neatly set out or apparent to the parties involved?
A dispute surrounding intensification, in such a circumstance, takes on a more fundamental and broad consideration.
The dispute can be more involved starting with establishing the actual existence of a right in the first instance.
Once the existence of a right is established the matter would then go on to consider scope of the right and if it has suffered from overuse and, therefore, intensification.
A claim for intensification in relation to an unregistered right suffers from a greater evidential burden, greater uncertainty and the very nature of the dispute actually places the leverage in the scenario in the hands of those resisting intensification.
Although the parameters used to assess ‘overuse’ / intensification are broadly similar in a claim against an express or unrecorded right (the parameters set out in a previous article), the scope of the dispute is much broader.
Some examples of some of the differences are:
Express Right
- The right is recorded and not (usually) in dispute. The existence of a benefit is not resisted.
- The landowner will generally advance the claim for intensification – framing the issue as intensification which has had the effect of taking the use outside of the scope of the granted right.
- The Defence (from the user) would focus on construction of the grant paired with the factual use that has occurred. A lot of focus will be placed on the construction of wording contained within the deeds and the interpretation of the same.
- The starting point for establishing if (or to what extent) intensification has occurred comes from the deed.
Un-recorded Right
- The actual existence of the right is usually disputed. The scope of any use is often challenged in an attempt to suggest that the use does not amount to a use ‘as of right’.
- Such a claim is usually escalated by those with the benefit of the right who must first prove that the right exists as of right for 20 years and then establish its scope (frequency, type of vehicles, purpose, intention) by historic user. Any claim will have a heavy emphasis on witness credibility over decades and contemporaneous evidence of continuity.
- In such matters the arguments of intensification are usually secondary to challenges to the existence of the right of way at all.
- The starting point for establishing if (or to what extent) intensification has occurred comes from ‘proved user’ from the prescriptive period.
- A situation with an un-recorded right is more vulnerable to “overuse” arguments, because any material increase is easier to characterise as going beyond what was acquired as there is no recorded starting point for an increase to be pitted against.
- A dispute concerning an un-recorded right more likely to be hindered by is evidential gaps (changes of ownership, deceased witnesses), inconsistent recollection, arguments about nature of the use (was it in fact a permission or a license).
I urge an extra word of caution for landowners who have the burden of an unrecorded right of way running across their land as intensification could have a far more profound impact in such a scenario than as against an express right of way.
It seems eminently sensible to record expressly any right with which your land is burdened to narrow the potential for future disputes.
A right greater than that which you anticipated could be secured by intensification if you do not act to record your understanding and intentions.
Our specialist team can support you with your legal rights and responsibilities so that you do not get caught out. Contact Catherine Gregson today for help.