Wednesday, 29 July 2020 / Published in Property Services

Private Rights of Way Explained

WHAT IS A PRIVATE RIGHT OF WAY?

A private right of way entitles the owner or occupier of an adjoining property to pass over someone else’s property to access their own property.

Rights of way have traditionally been described as footways, horse ways, bridleways, drift ways and cart ways.

Rights of way are either general or limited.

The express limitations of the user of right of way can take as many forms as’ human imagination can devise’.

The most common limitations of the extent to which a right of way can be exercised are restrictions as to the mode and purpose of the user.

The mode of passageway may be restricted to foot passage or may admit motor vehicles, the purpose of user may be restricted to the exercise of agricultural property purposes, or for sporting facility, or for carrying coal to a house, or allowing access to business premises.

The traditional boreen is ‘the vein of rural Ireland and the definition of the nature and extent of the right of way any one of them provides may well be a difficult task’.

The critical element is that there are two pieces of land involved – one which facilitates the right and the other from where the right is exercised.

can a Right of Way be established by long use?

Many rights of way were created when a land owner 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 20 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.

What is a Right of Way created by Agreement?

This situation arises when two land owners 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 which may be landlocked.

This might happen in a situation where a large land holding is being broken up on 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. Since the 2009 Act a person can claim a right of way if they can prove possession for 12 years from the 1^st of December 2021.

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.

Can I lose a right of way by not using it?

Rights of way can be lost by the doctrine of abandonment or they can be extinguished on 12 years nonuser if not registered.

The principles of abandonment can be summarised in these general terms:

Abandonment is not established by evidence of mere nonuser.
Abandonment requires some act or omission by the owner of the right of way accompanied by an intention to permanently relinquish the right.
An intention to abandon is not lightly inferred, and there is a conspicuous reluctance of the courts to hold that a right is abandoned in the absence of unequivocal evidence.
Implied release can only arise in circumstances where there is a substantial change in the nature of or the use of the land over which the right-of-way is exercised.
Abandonment is not to be inferred from the fact alone that the person who owns right away has made use of an alternative facility.

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).

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.

It is important note that until the deadline of the 30^th of November 2021, you can apply under the old rules to the Property Registration Authority to register Rights of Way.

If you wait until 2021 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.

I have an unregistered right of way. Should I register it?

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 licence, given periodically to the person using your land can therefore act as a written permission and help prevent someone establishing a right of way.

SEEK ADVICE AND TAKE ACTION

If you are a land owner 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 agreement with the other owner or you have a written agreement you should register using the fast track system.

You should go about registered before the deadline for registation to avail of the older system of registration.

This will avoid any problems that might arise under the new system.

If in doubt consult.

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