Right of Way Easements and Adjoining Titles: What to Check Before Buying a Development Site

When purchasing a development site, developers often focus on planning potential, site layout and construction costs. Title investigations — including whether a right of way easement or restrictive covenant affects the site — can be just as important. A seemingly minor issue revealed by an adjoining title can significantly affect the viability, cost or timing of a scheme. 

One of the most overlooked aspects of due diligence is reviewing neighbouring and adjoining titles. This can reveal rights, restrictions and boundary issues that may not be obvious from the title of the development site itself. Failing to investigate these matters properly can result in development being delayed or prevented altogether, expensive redesigns, claims from neighbouring landowners, compensation payments, or boundary disputes and litigation. 

A site visit should always be undertaken alongside the title review, to identify physical features or uses that may indicate legal rights not immediately apparent from the documentation.

Why adjoining titles should be checked

A development site does not exist in isolation. Rights benefiting neighbouring land are often recorded on adjoining titles rather than on the title being purchased — sometimes created by an express deed of easement, and sometimes recorded only in historic conveyances affecting the wider estate. 

A review of neighbouring titles may reveal: 

• Rights of way. 

• Rights for services and drainage. 

• Rights of access for maintenance. 

• Restrictive covenants benefiting neighbouring land. 

• Boundary ownership provisions. 

• Ransom strips — land retained by a seller that can block access to, or reduce the value of, a development site. 

• Historic conveyances affecting the wider estate. 

These matters can materially affect whether development can proceed as intended. 

The importance of identifying a right of way easement

A right of way easement is often the most significant title issue affecting development land. 

An easement gives one party the legal right to use another person's land for a particular purpose. A right of way easement allows a third party to pass and repass over land. 

Developers commonly encounter: 

• Vehicular rights of way. 

• Pedestrian rights of way. 

• Rights benefiting neighbouring residential properties. 

• Estate rights granted in historic transfers. 

• Rights acquired through long use (prescriptive easements). 

Why rights of way matter

A right of way may: 

• Prevent construction over the route. 

• Restrict site layouts. 

• Reduce developable area. 

• Interfere with access arrangements. 

• Affect planning proposals. 

• Reduce the site's value. 

A route which appears unused may still be legally enforceable. For example, a developer may intend to build houses over an area of open land, only to discover that neighbouring owners have a historic right of way across it. The development may need to be redesigned, or the right may need to be released before works commence.

Prescriptive rights and prescriptive easements

The risk extends beyond rights expressly recorded on the title. A neighbouring owner may claim a prescriptive easement — a right of way acquired through long and uninterrupted use. Evidence of tracks, gates, worn paths or regular access observed during a site inspection may indicate the existence of such a claim. 

This is one reason why a site visit is essential and should not be viewed as a mere formality. Gates are rarely shown on title plans but will often be evident from a site visit. 

How can a right of way easement be removed?

Removing a right of way easement is often possible, but it can be expensive and time-consuming. The available options include: 

1. Deed of release The most straightforward solution is to negotiate with the beneficiary and enter into a deed of release. The beneficiary will usually seek a premium or compensation payment, alternative access arrangements, and payment of legal and professional fees. 

2. Deed of variation: rather than removing the easement entirely, the parties may agree to relocate it to another part of the site. This can preserve the neighbouring owner's access while allowing development to proceed. 

3. Title indemnity insurance: title indemnity insurance may occasionally be available where the risk is low and the proposed works do not interfere with the exercise of the right. However, insurance is rarely a complete solution where development will physically obstruct the route. 

4. Tribunal or court proceedings: unlike restrictive covenants, easements cannot generally be removed through an application under section 84 of the Law of Property Act 1925. Government guidance confirms that the Upper Tribunal's section 84 jurisdiction applies to restrictive covenants and does not extend to easements such as rights of way. 

As a result, negotiation with the beneficiary is often the practical route. 

A covenant preventing development can survive planning permission

Developers sometimes assume that obtaining planning permission resolves all legal obstacles. It does not. 

A restrictive covenant is a private property right that can be enforced separately from the planning system. Government guidance confirms that a restrictive covenant can prevent development despite planning permission having been obtained. 

Common examples include covenants prohibiting: 

• Building on the land. 

• More than one dwelling. 

• Commercial use. 

• Alterations without consent. 

• Development above a specified height. 

Why adjoining titles matter for restrictive covenants

The land benefiting from a restrictive covenant may be neighbouring land. Reviewing adjoining titles can help establish whether the covenant is likely to be enforceable, who has the benefit, and whether adjoining owners may object to development. This can be critical when assessing development risk. 

What can be done if a restrictive covenant may be breached?

1. Obtain consent: the preferred option is often to obtain a release or consent from the beneficiary. This provides certainty and reduces the risk of future disputes. 

2. Title indemnity insurance: where the risk of enforcement is low, title indemnity insurance may be available. However, insurance is not suitable in every case, may not protect against all losses, and may be unacceptable to a prospective purchaser or their lender. 

3. Challenge enforceability: not every restrictive covenant remains enforceable. Careful legal analysis may reveal that the benefiting land can no longer be identified, that the covenant has become obsolete, or that the benefit has not passed correctly. 

4. Apply under section 84 of the Law of Property Act 1925 The Upper Tribunal has power to discharge or modify certain restrictive covenants where statutory grounds are satisfied, including where the covenant has become obsolete, where it impedes reasonable use of the land without providing practical benefits of substantial value, where beneficiaries consent, or where modification will not injure those entitled to enforce it. A successful application can enable development to proceed, although compensation may sometimes be payable. 

The importance of checking boundary ownership

Boundary issues are frequently overlooked until construction starts. A review of title documents and adjoining titles should establish who owns each boundary, responsibility for repair and maintenance, whether fences, walls or hedges have been moved, and whether occupation on the ground matches the title plan. Boundary discrepancies between the title plan and what exists on site can cause delays to development, access problems, disputes with neighbours, and increased construction costs. 

Developers will often agree to replace or improve boundary structures as part of a scheme. Understanding ownership at the outset helps avoid disagreements and unexpected liabilities. 

The importance of a site visit

A site visit should always accompany the title review. The site inspection should consider existing access routes, regular pedestrian or vehicular use, gates, tracks and pathways, boundary features, signs of encroachment, service media crossing the land, and occupation inconsistent with the title plan. 

The physical position on the ground often provides clues to potential easements, boundary disputes or third-party rights that are not immediately apparent from the registered title. 

Conclusion

For developers, reviewing the title to the site alone is rarely sufficient. Adjoining title investigations are a key part of development due diligence, with particular attention needed on: 

• Rights of way easements. 

• Restrictive covenants. 

• Boundary ownership and discrepancies. 

A right of way easement may affect part of a site or require costly compensation before development can proceed. A restrictive covenant can prevent development even where planning permission exists. Boundary issues can lead to disputes, delays and unexpected expense. 

A Land Registry title plan should not be relied on to show the precise extent of the land unless there has been a formal determination — so it's important to arrange a measured site survey alongside the title review. 

Combined with a thorough site inspection, careful investigation of adjoining titles can identify risks early, allowing developers to make informed decisions before committing to a purchase. 

Right of way easements and adjoining titles: frequently asked questions 

What is an easement?  

An easement is a legal right that lets one landowner use another's land for a specific purpose, such as a right of way. Easements can be created formally — for example by deed or during a sale — or can arise informally over time through long, uninterrupted use. 

What are the 3 types of easements?

Easements are usually created in one of three ways: by express grant, set out in a deed or transfer; by implied grant, arising from the circumstances of a sale even where nothing is written down; or by prescription, through long and uninterrupted use, typically 20 years or more. Which type applies affects how enforceable the right is and how easily it can be identified during due diligence. 

How do restrictive covenants affect development?

A restrictive covenant is a private right that can limit or prevent development — for example, a covenant against building, or against uses other than a single dwelling. Obtaining planning permission does not override a restrictive covenant: the two operate independently, so a covenant can still block a scheme even where planning consent has been granted. 

How much does an easement cost UK?

There's no fixed figure, and it depends on what's involved. Removing or varying an existing right of way may involve a premium or compensation payment to the party who benefits from it, plus legal and professional fees, while title indemnity insurance — where available — carries its own premium. Our Residential Property team can advise on likely cost once we know the specific right and site. 

Why check neighbouring titles when buying a development site?

Rights benefiting neighbouring land — such as rights of way, drainage rights or restrictive covenants — are often recorded on the adjoining title rather than the title being purchased. Reviewing them before exchange helps identify issues that could delay, redesign or prevent the development, so they can be addressed as part of due diligence rather than discovered once works are underway. 

Can a Land Registry title plan be relied on?

Not fully. A Land Registry title plan comes with a general boundaries caveat, meaning it shows the approximate rather than the precise legal boundary unless there has been a formal determination. For development purposes, a measured site survey alongside the title review gives a more reliable picture of the boundary and any physical features that might indicate an unrecorded right. 

Next reads 

• Conditional Contracts for the Sale of Land: A Guide for Landowners, Developers and Buyers

Residential property and development advice 

Our Residential Property team advises clients across London, the South-East and beyond on the sale and purchase of residential property, lease extensions, tenants' purchases of freeholds, new build transactions and general legal advice on residential conveyancing. To discuss your development purchase, call 020 8858 6971o r email conveyancingenquiries@grantsaw.co.uk. 

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Disclaimer 

This article is for general information only and is not legal advice. Laws and guidance change and outcomes depend on facts. If you need advice on your situation, please contact us. Grant Saw Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority. 

Last updated: 21 September 2026