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Easements and rights of way

17 January 2018

You may be approached by a neighbour who would like to have a right over your land for the benefit of their own land. Before agreeing to the granting of the right you will need to consider whether this is something that you are legally entitled to do.

Type of school
Land ownership Who can grant rights?
Community
Local authority The school cannot grant rights. Any request for rights over the land should be referred to the local authority.
Voluntary aided voluntary controlled
School site - trustees or governing body

Playing fields - local authority
The governing body or the trustees (depending on who owns the land) can grant rights over the school site but not over the playing fields. Any request for rights over the playing field should be referred to the local authority.
Foundation
Foundation and or governing body
The governing body or the foundation can grant rights.
Academy (previously community school)
Freehold - local authority

Leasehold - academy trust
The academy trust cannot grant rights. Any request for rights over the land should be referred to the local authority.
Academy (previously VA or VC)
School site - trustees

Freehold of playing fields - local authority

Leasehold of playing fields - academy trust
The trustees can grant rights over the school site but not over the playing fields. Any request for rights over the playing field should be referred to the local authority.
Academy (previously foundation)
Academy trust
The academy trust can grant rights.
Free School
Freehold - local authority, or the academy trust, or other landowner

Leasehold - free school/academy trust
The free school/academy trust cannot grant rights unless it owns the freehold. Any request for rights over the land not owned by the academy trust should be referred to the local authority or other owner of the land.
Independent Trustees or governing body
The governing body or the foundation can grant rights.

Formal creation of rights

Rights or easements over land are generally created in formal deeds and registered at the Land Registry.

What you need to do

If you intend to grant an easement you will need to:

  • agree the heads of terms with the other party
  • instruct your solicitor to prepare the draft deed of easement
  • apply to the Secretary of State for Education for consent to the grant (please see our guidance in this regard)
  • arrange for the deed to be registered at the Land Registry.

Creation of rights by prescription

Rights and easements over land can also be acquired by third parties who have exercised the right, even though they did not have consent to do so and no formal deed has been entered into. This can include land becoming designated as a town or village green.

If you discover that rights are being exercised by third parties over your land, you will need to take steps to prevent prescriptive rights from accruing. Importantly, if you allow a person to believe they will enjoy rights over your land, then you may not be able to prevent the rights from accruing.

What you need to do:

  • if you occupy the site under a lease, inform the freeholder as soon as reasonably practicable after becoming aware of the problem
  • secure/fix any open areas of fencing that have given access to the third party
  • consider securing the entire site (including pedestrian entry points) outside of school hours
  • erect trespasser warning notices
  • take legal advice if the above steps do not remedy the problem, as formal legal action may be required
  • respond promptly to any communication received from the Land Registry or local authority regarding the registration of any purported rights preferably with the benefit of legal advice.

Statutory and existing rights

Statutory rights over your land may already exist, as may other rights that have been acquired by prescription. If this is the case, you will not be able to interfere with them and must operate from the site without doing so. However the existence of those rights may be a safeguarding issue, or may present a problem in the event you wish to redevelop the school. In this case, you may wish to consider whether there is any action you could take.


Our team has extensive experience in relation to all types of property matters relating to schools, including disposals and acquisitions, leases, telecoms and substations, solar panels, boundary disputes, rights of way, access issues. Please feel free to contact us if you need any advice or assistance.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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