A deed is preferable when establishing a right of way
A right of way is an entitlement to travel across a route regardless of land ownership and is generally one of movement. As such, it does not normally include rights to stop, load, unload or park for any reason.
Often, Bermuda house holders have a right of way across estate roads or a neighbour’s land. Such rights are usually established either in writing by deed or by proving at least 20 years’ uninterrupted use, as of right. A deed, properly documenting the right, is preferable. If not, at the very least affidavits will be required confirming at least 20 years’ use as of right, together with sub-division planning consent.
A claim to an undocumented right of way fails if it is exercised with another’s permission or if it is secret or forceful. An undocumented claimant can rely on use by a third party if the third party’s use benefits the claimant’s land — for example, postal deliveries along an estate road or a track.
After a right of way is established, disputes can arise as to the extent of the actual entitlement. If a right of way is altered practically and substantially, so as not to be exercised as conveniently as before, the user may have a successful claim. A claim might arise against the land owner or a third party causing alteration.
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