Issues relating to rights of way are contentious and can cause difficulties for both land owners and those seeking to pass over a piece of land. John Lynch looks at the issue in this blog and podcast.
What does the term “Right of Way” mean?
A right of way arises if you own a piece of land and to get to it you must pass over a piece of land or roadway that is owned by someone else.
Rights of Way, also known as easements, is an enforceable right by one landowner to gain access to their land by going across someone’s land.
A right of way could be a laneway, a boreen, a gap in a fence that leads to property owned by someone who does not own the laneway, boreen, gap etc. e.g. a derelict house at the back of a field.
This can lead to controversy between both owners.
Are there different types of Rights of Way?
- Rights of Way established by long use
- Rights of Way created by a Document
What is a Right of Way established by long use?
Many rights of way were created when a landowner used a piece of land, lane, or private road, which belongs to another person, over a long period of time, to get to his property.
The main test to prove a right of way was the continuous use of the land for 12 years or more. Up to now a right of way created by long and continuous use would generally not be registered.
A person who benefits from such a right of way e.g. the farmer who uses an adjoining owner’s property to access a remote part of his farm or a house owner who uses a laneway to access the rear of his house.
Podcast: Property & Rights of Way
What is a Right of Way created by Agreement?
This situation arises when two landowners get together and agree that a right of way should or needs to be granted to allow one of them to access a piece of property that may be landlocked.
This might happen in a situation where a large landholding is being broken upon a sale, or if a farmer is gifting his farm to a child and retaining a small portion for himself.
Quite often if a right of way is being created by deed or agreement the parties to the agreement will include conditions in the agreement for the use of the right of way e.g. if the right of way is over a private roadway it might stipulate that a gate is to be kept locked or there might be a restriction on the exercise of the right of way – e.g. it is for pedestrians only. Once the right of way is agreed and recorded in writing it is usually registered.
How long does it take to establish a Right of Way?
The Land Law and Conveyancing Act 2009 changed the old way of establishing a right of way which was that you had to prove a certain amount of right; in the Courts view 20 years. This method led to difficulties so the 2009 Act tried to simplify the area of rights of way. Since the 2009 Act a person can claim a right of way if s/he can prove that s/he had possession for 12 years.
Under the Land and Conveyancing Law Reform Act 2009 a person had to make a claim for a right of way within 3 years of the introduction of the Act. This could not work in practice as the requisite 12 years would not have passed. so an amending piece of legislation was introduced – the Civil Law (Miscellaneous Provisions) Act 2011.
The person who is establishing the right of way must be a user as of right; you have to prove permission and consent by the owner of the laneway etc. to the person who wishes to use it to access his own property. The law helps out by presuming consent where you show continuous use for more than 12 years.
What should I do to make sure I don’t lose my Right of Way?
If you access your property by using a right of way over another person’s land you need to make sure that that right of way is registered with the Property Registration Authority (PRA).
The Land and Conveyancing Law Reform Act 2009 originally provided that farmers had to go to court to register existing rights of way before 30th November 2012 or they could lose their right of way.
The Civil Law (Miscellaneous Provisions) Act 2011 extended the deadline for registration until the 30th of November 2021. ( this has now been extended for a further 6 years.)
To register a right of way, there is now a straightforward procedure where all parties agree.
People can now make an application to register the right of way if it is not in dispute. Under the legislation, people had to prove 12 years from the date of the Act. Historically, if there was a gap in the 12 years i.e. if there was a period of time during which the laneway etc was not used, you would have to start the time period again.
Under the 2009 Act, people don’t have to start the time period of use of the right of way again.
It is important to note that until the deadline you can apply under the old rules to the Property Registration Authority to register the Rights of Way.
If you wait until 2027 you could lose an opportunity and may run into unnecessary difficulty.
How do you go about registering a right of way that has been used for many years?
An affidavit must be sworn by the person claiming the right of way setting out as much detail as possible about the right of way, how and when it is used, the details of the land over which it is exercised and the name and address of the person who owns the land. You must also provide the land Registry with a map identifying the right of way. The fee payable to the Property Registration Authority is €25.00.
The PRA will then notify the owner of the other property concerned and, once the application is not contested, the right will be registered.
If the right of is contested then the parties will have to use a different procedure, which involves an application to the Court seeking a Declaration confirming the existence of the right of way – essentially the court determines whether or not the ROW exists and if it is proven to exist the person claiming the right of way can then go to the PRA to seek its registration.
How to know if a Right of Way exists on my land?
If the right of way was created by agreement, there should be a paper trail showing it in your title documents. These may be held by your solicitor or mortgage provider.
If the right of way, created either by agreement or long use is registered, then it can be seen by requesting a copy of your property’s folio from the Property Registration Authority.
Up until recently, rights of way developed by long use were generally not registered and so may exist unregistered.
If you are concerned that a right of way might exist over your land, you should speak with your solicitor.
I have an unregistered right of way. Should I register it?
Yes, and soon.
The reason for this is that under the changes brought in since 2009, a right of way can be registered (if the affected landowner does not object) without the need for court approval only until the 30th of November 2027.
As such, while a substantial application is still needed at present to have a right of way registered, it will become more burdensome after this 2021 date when the proofs will be more difficult and a court order may also be needed.
The benefit of registering a right of way is that it is protected from becoming extinguished. It will also be extremely helpful if you choose to sell your house in the future as a new purchaser will almost certainly want the right of way registered.
How to stop somebody getting a right of way
A right of way can only be registered if it is used without secrecy, without force, and without permission.
A letter of consent or a license, given periodically to the person using your land can, therefore, act as written permission and help prevent someone from establishing a right of way.
If you are worried about someone developing a right of way then you should speak to your solicitor about it for detailed advice.
Seek Advice & Take Action!
If you are a landowner using a right of way you should look for advice to make sure that your long-established rights of way are not lost.
Title documents should be checked at the earliest opportunity to find out if your right of way needs to be registered – if you don’t do something in time you could lose a valuable asset.
If you have an agreement with the other owner or you have a written agreement you should register using the fast track system.
You should go about registering before the deadline for registration to avail of the older system of registration.
This will avoid any problems that might arise under the new system.
If in doubt consult.
This material is provided for general information purposes only and does not amount to legal or other professional advice. W every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.
For further advice or if you wish to discuss any other legal area please contact [email protected] or telephone 052-6124344.