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.
What about issues of maintenance liability?
There are usually no specific obligations unless there is a formal document.
I have a unregistered right of way to a field I bought in the late 70’s. The land I cross over has had two new owners in this time without any problems.Does this fact strengthen my case when I apply to register my right of way.Conal OLeary.
A right of way based on possession without objection helps – but if an owner of the land the subject of the right of way objects, the right will need a court order to effect registration.
Hi John,
We have been approved planning but on our lane there is a small section where an old railway folio was not transferred in error to the land owners at the time of closure. There is no registered right of way in place.It has been over a year of our solicitors trying to sort this with CIE but it is very slow to respond. The lane has been used by the land owners since the 1980s. Is it possible to have right of way granted from use or what do you think the best way to proceed would be? Legally they wouldn’t have a right of way registered to their section in the lane either.
I am not sure what the relevance of the “CIE” plot has to your right to use the lane. Unless you are waiting for a transfer of the plot in order to register a right of ay over the lane. I would comment that a right of way does not need to be registered to be used. If you have been using it since the 80s then you may have acquired a right of way over that time .
Hi I have an old right of way to the left of my property that hasn’t been used in 5 years my site map shows I own a part of it that if I fence my boundary would substantially block the old right of way .. no documents in purchase to state I cant so is it OK to fence my boundary
The short answer is that you cannot block a right of way .
Would right of way need to be registered individually on a laneway used as rear entrance by many houses?
If you mean can you do a group application , the answer is : each person with th right of way would need to register.
What happens if a next door neighbour uses part of my garden to park his car for a number of years. It is behind his house but our gardens were originally plots and therefore not behind our own houses .Can he claim the portion of my garden if he parks there unchallenged for 10 years
The area of easements for parking is not an easy one . The Courts recognise a right to park per se. The proofs , however, are the important element. It has to be for a long enought time and not a premission.
Hi John,
I recently purchased an end of Terrace house with a garage to the rear accessed via a laneway. The laneway also provides access to the rear of a house backing onto the lane so is shared.
The owner of this other house entered into an agreement with a previous owner of my house, giving said neighbour permission to park his car on the lane – blocking access to my garage.
I hold the deeds to the laneway, but the land is not registered. Not wanting to fall out with the neighbour, my only concern is losing access to my garage, or losing the land completely.
Grateful for your advice,
The important element appears to be the fact as an agrement and finding the exent of this agreement .
What a bout a landowner putting up a locked gate and not telling you
You find out from another person who uses the right of way and that the land owner will allow you in when you are there and you call him so that he then gets someone out to allow you through
Is this in anyway an acceptable way for someone to treat the right of way?
Gates are commonly a source of disagreemnt. The issue is normally resolved on the facts. As a quick assessment it comes down to ‘convenience or cussedness’ – Convenience or cussedness in putting up the gate ; convenience or cussedness in not closing a gate after passing through’
Can you reroute a right of way? Currently one goes by my front door – I would prefer it if it went the other side of the house. Is it possible to do that?
You normally cannot reoute a right of way without agreement .
A shared laneway that runs adjacent and behind our terrace has recently been bought by a new neighbour from an Estate. We and all our neighbours have been parking on this laneway for over 20 years. The new neighbours are telling us we can no longer park there. Do we have rights?
Like all legal answers – it depends! The courts have recognised the existence of a right to park. It can arise as an add-on to a right of way or as a standalone right. The add on is an easier one to get home.
Hi John, My parents are selling their house and farm and a neighbor is just now claiming a right of way. This is not written on either deeds of my parents or the neighbors land. It has always just been by permission thing from our family or gentleman’s agreement over the many years. The field he is claiming a right of way to is not actually landlocked and he has a way into this field through his own farm. He does not use this entrance himself at all and has not done so in a long number of years. The access to this field through our property is on a council passage as far as our farm but then there is a private lane down to the entrance to the field, along with another two entrances to our own fields. He has his land rented so the renter of the land is now using this entrance but this man renting the land is also renting my parents land so he has access anyway to our land. The neighbor is threatening court for his right of way but we are unsure he actually has a right of way at all? Does he have a case?
There are a number of factual issues that would need to be resolved in this question – e.g can the fact that it is a permission/ gentleman’s agreement be proven; has the use be abandoned. The fact that there is an alternative route is not conclusive nor is the fact that the field is not landlocked. It is going to come down to the evidence been provided by both sides.
I am the beneficiary of 12 acres of land ,my brother inherited the farmhouse & 9 acres of land from our late father recently probated, but not administered. Access to my 12 acres was always down the back lane across the brothers lands. The executor has applied for planning permission for an agricultural gateway on the brothers lands to access the public road, and got planning permission recently. The executer is now intending that I will access my 12 acres via this new route . There was no discussion or dialogue re the above. I had planned to build a bungalow on my land but as this entrance I have been instructed to use is an agricultural entrance. Question 1 is this lawful for the executor to change the route to my property without consultation. Question 2 , will it affect my chances of getting planning for my bungalow by only having an agricultural entrance to my land, the executor is going to register all the lands with a right of way to my property. Can he do this?? Thank you .
The long answer will need more information and a consultation . The short answer is that you can change the route of a right of way with the consent of both owners. Yes, it could affect the planning application or , more significantly the right to erect a dwelling . The third question, as to whether or not the Executor can do this, is a question as to whether you as ultimate beneficiary can prevent this been done. The short answer is that action should be taken to insist on the administration. The final short answer is a question – has the right of way used previously been lost? This is worth exploring.
Thank you for the response. As the land was in the ownership of my late father until his death. There was no right of way needed. My 12 acres is now landlocked & access was always by The “Back Lane” until the executor informed me of the change. The new agricultural gateway that the executor got planning for is not yet installed or constructed.
Do I not have a right of way by necessity as there is no other route to access my lands other than via the back lane. Many thanks for your response. HERBIE.
Without going into too much detail – I can say that a right of way by necessity is a very limited option and usually arises by implication for previous land transactions. The parcel of ground must be landlocked with no other possible access .
That is it in a nutshell! Thank you John.
Hi,
There was an unregistered right of way cart track to access land that I bought over 22 years ago. The owner of the land the right of way crossed gave permission to remove a ditch. I then built a wide road to access my land.
The owner has since passed away and his children recently sold the land and refused to grant an easement.
Have I any greater right to ownership of the road as I built it and had sole use for the 22 years.
Quick answer is that it seems that you have a registerable right of way . But , if they don’t consent , you will have to go to Court to get a declaration that it is a right of way.
Hello John, I own a property, and the right of way which adjoins it (as per my registered deeds), in an urban area and which gives access to several other properties. One of these property owners is seeking planning permission to build a substantial number of housing units on their one-third of an acre plot. They wish to access water, sewage and electricity services using my part of the lane (my deeds specifically state that the other property owners have a right of way “over” it) by excavating through it to join the local authority services as well as using it to access their site with all the building services and materials required for these new builds plus demolition extraction with the possibility of sectioning off my lane property as they require this area for access/egress site safety purposes and all other aspects in a building project.
As my property and another have their sole access/egress onto my owned portion of the lane and, this for a start, presents difficulty as the lane width is not suitable (i.e. at 8ft 10ins wide) for both pedestrian use and cars (approx 7ft wide) at any one time with people occasionally having to press themselves sideways flat against the wall to allow cars pass. The lane connects to a very busy urban footpath and national main road.
The proposed building plot was separated from a whole property 3 decades ago. This remained undeveloped until this proposed building project and through which the now proposed services would have been routed.
What are my rights, as the owner, of this section of lane and can this other person go ahead with this use of my laneway property without my express permission or without any prior consultation with me as I haven’t even been approached in any way about the excavation through it and use of my part of the lane for this building project? If these units are completed would I be required to give these new owners and tenants a right of way over my part of the lane and if so are there any implications? Thank you.
I am afraid that there is quite a lot in your question which needs a look at the history and title of the respective properties and the use. The quick answer would be that they would have to prove that there was a right of way in the first place. If there is a provable right of way, then they would normally be restricted in their use of the right of way to extent of its historical use . This is without going into the question as to whether or not they would get planning permission. If you are the owner you should document your objections to both them and the planners
I have a property that as a right of way registered at the back of it for 2 named people. This has not been used in the past 12 years. Can I have it removed from the register as it is becoming a stumbling block for sale. The 2 people have refused to sign it over despite not having used it.
Lee, this is a tricky one! if by registered, you mean registered in the Land Registry , then unless the right of way can be said to have been abandoned, you may bot be able to have it removed .
Hi John, our historical right-of-way to access our turbary rights, plus part of our turbary rights, will be built on by a new bypass, severing our access. While there is a proposed longer route to provide access my problem is we have received no CPO for this loss of our original right-of-way and our fuel costs will increase greatly once it’s gone. Is there anything in law we can reference to explain, as you stated earlier that they “cannot reroute a right of way without agreement”, if this is relevant in our case? Do they need our permission? I feel our rights are being infringed upon and I don’t exactly know which rights. Thank you for your help.
This seems to be an issue on the extent of Compulsory Acquisition compensation. I would need more information but I would have thought that if the bypass is interfering with the right of way , the issue of compensation should arise.
Hi John,
Is it possible to get a right of way across a piece of land that is not legally owned by anyone?
It was previously owned by two sisters who are now deceased, they did not leave a will but have four nieces, the nieces agreed that one of them is to benefit from the land but that person is not going to legally transfer it to her name as she does not need it.
I need this right of way in order to satisfy “visibility splay” from our site entrance in order to get both planning permission and a mortgage.
Emma, it seems to me that when you say that the piece of land is not legally owned, you mean there is no one presently in control of the property. If the sisters are deceased , there should be someone who will represent them. I am not sure if this is a brand new right of way you are looking for or one that has existed for some time! In any case, it should be possible to create or confirm a right of way in these circumstances.
Thank-you!
Hi I required some garages and land from land own! Public have been useing it for over 20 years! ? I have spoken to the land own before I bought it! He said it was never intended it to be a right of way? He said the only people that should be down there are garage owners!. I have reserved I letter from one of the residents say I must reopen the right of way!!? Not the land registry!! Where do I stand on this! I can’t use the garages because I can’t get insurance if right of way is in place! Thank you
Mark, a public right of way does not come into existence simply by being used by the public. There must be a dedication by the owner. It seems that you may have evidence of non- dedication from the previous owner. You do , however, mention residents. I wonder if these residents have acquired a private right of way over time.
Hi John,
My partner and I purchased a protected structure in 2016 that backs onto a covered lane-way also a protected structure , we have a doorway that leads directly onto the lane-way but rarely used , historic maps ( 1849) would indicate the door has been there a very long time. A right of way or easement exists along the lane-way and indeed on one map shows it extending into our property but for who we dont know — The door was questioned by the council on a planning application made by our buildings previous owner in 1990 , the applicant stated at the time they had a ”right to access the lane ” albeit a private lane and backed this up with a map highlighting the lane in yellow. Our current folio map does not make reference to any easement , however a 1949 indenture refers to the building ”colored red together with all easements therewith used and enjoyed” , We did presume we had a right despite it not really being any of any significant use to us. A builder recently purchased the lane-way and unknown and unannounced to us proceeded to block up the door on the basis that we had no right of way despite the doorway never been blocked up certainly within the last 30 years. We really are lost as to how we can establish if we have a right of way ? did a right of way ever exist & even if it did could the previous owner have sold it ? – none of its clear from title documents- If you had any thoughts or suggestions would be very grateful :-).
Shea, I would need to have a look at the paperwork to be definitive. The quick answer is that you may have a documentary easement in your Deed of 1949 or a right of way over time. If this is so , and it has been used over the last 12 years and not abandoned , you should be able to unblock it . The interesting aspect is the doorway – a door is a means of access onto a right of way as opposed to a right of way!
John a chara ..Am I too late to reg. a right of way that has been in used for over 200 years by my family … Its a lane used to access an old farm house ,, no one else uses it …. If I were to reg. lane would Council maintain it …
If you have a right of way and the owner does not object, you can register a right of way with the Property Registration Authority. The local authority will only maintain a roadway if they formally take it under their control – i.e. take it in charge.
Hi John,
We have a private right of way for vehicular access to the rear of our house using a lane that runs along our boundary with our neighbour. The lane is owned by them.
We would like to move our vehicular access gate from the rear to a side entrance, a different location onto their lane. The new position is closer to the public road, so it is a location our right of way currently passes through in order to exit.
Do we have the right to move the gate subject to planning?
Thank you
Subject to review all the documents and circumstances, my quick answer is that alternative access onto an established right of way is, within reason, available to you. Planning is a separate matter that needs to be checked.
Hi, can you contest a right of way? For instance if the right of way was previously to access a field but now there is a road at the other side of the field belonging to the person who claims right of way. They can now access their field through their own road. So in essence they don’t require a right of way on my road anymore.
You can always contest a right of way if you have the evidence. However, the fact that the person has an alternative access route is not a valid basis to object. It is a different matter if the argument is that the right of way has not been used for some time or is abandoned.
I’m a little confused as to what the new bill with regard to easements entails. We are looking at buying some agricultural land with a view to building on it in 2 years when we hopefully qualify for planning. The land is down a private lane and there is no dispute about right of way now . The vendors solicitor is saying a statutory declaration of right of way is fine now due to legislation being postponed. Our solicitor is saying it should be registered officially . The vendor does not want to register it now as he is selling it to us even though others were interested in land and doesn’t want neighbours to know until we go for planning. We obviously would need right of way registered in 2 years time when we go to banks for self build mortgage . There is genuinely nothing nefarious in vendors request just local politics. Are statutory declarations / deeds with regard to rights of way (vendor has owned land for >30 years or more ) still accepted now due to the December 2021 legislation changes / reversal or are they considered insufficient as of December 2021 ? Hope that makes sense .
The safest course of action is to register it .
Hi John,
a famer has a right of way into land at the back of our house, yesterday he took a load of bales out of the field destroyed the driveway (right of way) which we repaired last spring. what rights do we have as the landowners the right of way is on? can he be held liable for maintenance and repair ?
The short answer : if he damaged the right of way , he would normally be liable to repair it.
Dear John
We are hoping to buy a rural property and are cash buyers- which I think may make things slightly easier but also don’t want to make a huge legal mistake.
There is a very well maintained track that runs through 6 peoples’ land that accesses the property, and several other houses.The owners do not have have a registered right of way- as one land owner is ‘awkward’ and has refused to sign for some years. The road has been used for at least 20 years without interruption. The sellers are now threatening legal action to this person. An additional new issue is that a very small parcel of land on the property’s personal drive is unregistered land due to it being part of the next door neighbour’s land which was unregistered when he died and the plot inc house was passed to next of kin. There has been a form 68 registered to address this but we have been told it could taken12-18 months. We have been given an option by our structural engineer of trying to get an agreement from a neighbour to agree a new right of way through a thin strip of their land that abuts the main road- in case the legal case didn’t resolve. We would reduce the price offered (we paid over asking) accordingly so we could build our own track if needed. Could we also withhold money so the sellers saw the form 68 through..? Or would we do that ourselves? Our solicitor seems to think this is very complex and we should walk away… our surveyor thinks it’s all doable. To add the property and land is worth a lot to us and we have been looking a long while. Thank you and kind regards
The quick answer is – these things are doable at a cost in time, money and patience. I would need a bit more to give a more legal response.
Can a “Right of way” be established through long use even if the person using the land does not stick to any one way/direction and seems to change with the weather?
The quick answer is that a right of way usually has to be a clearly defined route.
Dear John,
I own a property with an adjacent laneway which provides my neighbour with a right of way to the rear of their premises (as per my registered deeds). My neighbour now wants to demolish his dwelling and replace it with three new houses which he intends to rent out. The plans show rear access to each of the three new houses using my laneway.
Can you please confirm if the right of way be subdivided into three, granting access to three families to use it?
An interesting question . The short answer is that it may be seen as an excessive use of the right of way and therefore not permiteed. As with all things legal, the long asnwer will depend on the factual matrix and the relevant documents .