In many situations, a right of way is created via a written agreement between landowners. There are two common scenarios:
Scenario One: when selling part of his land to another party, the seller considers it necessary to reserve a right of way over the land he is selling. Possibly for his own access purposes to a house, for example, or so that the land he is retaining can continue to benefit (and therefore be useful and/or retain value) from the ability to cross the land being sold.
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Further Scenarios
Scenario Two: Is almost an inverse situation. When a seller is selling part of his land to another party, both the buyer and the seller may agree that the buyer should be granted a right of way over the land the seller is retaining. This can be to facilitate use of the land that is being sold.
Where a right of way may have been created by implication (i.e. rather than expressly) the clarity of who has the right to do what becomes slightly less clear.
Implied rights
In a similar situation to that described earlier, where a seller sells only part of his land to another party and retains part for himself. The legal documents giving effect to the sale may say nothing about granting a right of way to the buyer over the land being retained by the seller, but the law will imply the grant of a right of way in certain circumstances.
Implied rights of way can be established via length of use. You can usually acquire a right of way over someone else’s land provided you have been using the right of way for a period of at least 20 years and the right of way somehow benefits land you own or of which you are a tenant. You must not have been using the route in secret, by force or because a third party has given you permission to use it.
There are various legal questions with regard to the extent of the right and what has access in terms of vehicles or horses for example. rhw can help explain and help with the legal issues behind the whole area of Right of Ways.
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