Purchaser's solicitor: "Please confirm that the subjects are not affected by any public right of way."

Seller's solicitor: "It is confirmed that, so far as the seller is aware, the subjects are not affected by any public right of way."

An exchange like this between solicitors dealing with a property transaction is fairly typical. The due diligence process needs to cover all sorts of things, and questions on matters ranging from utilities to VAT need to be asked and answered. The purpose, of course, is to provide the purchaser with as complete a picture of the property as possible, and to flush out any possible difficulties or issues.

The question about public rights of way needs to be asked of the seller because, in general, the existence of a public right of way will not be mentioned in title deeds, and may not be a matter of public record. Public rights of way are usually established through long-standing use of a particular route by the public, and therefore the question of whether such a right affects a particular property cannot normally be answered by checking paperwork - it needs to be answered by somebody who knows the property and how it is used.

In amongst the numerous due diligence questions asked and answered, is the question of public rights of way always given the attention it deserves? Possibly not, given that the existence of a public right of way through a property may have a big impact on use, enjoyment and development potential. It is not difficult to imagine, for example, a developer's plans being drastically changed due to a public right of way being found to pass through the middle of a development site. But how do you know if a public right of way exists?

The recent Sheriff Court decision in the case of Mr and Mrs B against Mr and Mrs C provides a useful reminder of the legal principles behind public rights of way. The case involved a path through woodland in Angus. Mr and Mrs C (whose family owned the woodland, including the path) had built a new home which was accessed via the path. The path ran very close to their new house. Although the path had previously been designated as a Core Path, the local Council had agreed to re-route the Core Path so as to avoid the new house, allowing Mr and Mrs C to install a gate across the path to protect the privacy of their home. However, Mr and Mrs B (who lived nearby and had objected to the new house being built in the first place) argued that a public right of way existed over the original path.

The judgement of Sheriff Murray sets out the authorities relating to public rights of way in detail, but the following key points are worth recapping:

Start and finish in public places

Any public right of way must start and finish in public places. In other words, a public right of way must provide a continuous link from one public place (such as a public road) to another. A loop used by the public, perhaps as a recreational walk, will not amount to a public right of way.

Definite route

A public right of way must follow a specific route. Usually the route will be obvious - a right of way is likely to follow a particular path, track or road. The fact that members of the public have tended to cross a particular piece of land, but without following any particular route, will not give rise to a public right of way.

Must be used by the general public

For a route to become a public right of way, it must be used by the general public. Regular use by a neighbouring proprietor, or regular use by visitors to the property, will not amount to use by the general public, and therefore will not create a public right of way. However, a word of caution: long-standing use by a neighbouring proprietor could establish a private servitude right of access.

Use must be "as of right"

A public right of way will only be established if the public has used the route "as of right". This means that the public must have used the route on the understanding and belief that they are entitled to do so, not on the basis of tolerance or permission by the landowner. However, landowners should beware - the onus will be upon the landowner to make the public aware if use of a particular route is tolerated or granted with their permission, otherwise the assumption will be that the public are using a route as of right.

Use for 20 years without challenge

Finally, if all of the above criteria are met, a public right of way will only be established if the route is used by the public for a period of at least 20 years without challenge.

In the case of Mr and Mrs B against Mr and Mrs C, the Sheriff found that there was no public right of way over the path in question. The evidence did not show that the path had been used by the general public, only by Mr and Mrs B themselves, and therefore there could be no public right of way. There were also question marks over whether the path was used as a link between public places, or simply as a recreational loop, and there was evidence that (many years before) permission had specifically been given to Mr and Mrs B to use the path.

However, the case does serve as a reminder of the importance of establishing whether or not a public right of way may exist, and of the bases on which such a right can come into being. Although the question of whether a public right of way exists should always be asked of the seller when buying a property, the fact is that in some cases the seller genuinely may not know the answer. For example, a seemingly innocuous short-cut through a property could in fact be a public right of way. This is something purchasers should bear in mind - and any apparent public use of route through a property should be brought to the attention of your solicitor and investigated further.