If you have a right of way you need to make sure that you register it with the Property Registration Authority to ensure that it will not lost as a result of recent changes to the law relating to rights of way.
The new legislation on rights of way requires rights of way that are not already registered with the Property Registration Authority before the 30th of November 2021 to ensure that they are not extinguished.
Historically, rights of way were created by long and continuous use or created by a more formal agreement.
Rights of Way 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 twenty 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, will lose this right of way if it is not registered before the1 December 2012.
In order to protect your right of way, which may have been enjoyed for far longer than the minimum time of twenty years, you, as the land owner, will need to apply to court for a Declaration confirming the existence of the right of way. Once it is the Declaration is granted by the Court, you can continue to enjoy the benefit of your right of way and you can proceed with the registration of your right of way against the title of other land owners. Failure to lodge an application with the court before the 1st November 2012 will result in the loss of your right of way.
Rights of Way created by Agreement
The new law also affects rights of way that were created by a written agreement, and which are not registered with the Property Registration Authority. If you are a landowner, who has a written agreement for a right of way, you could also find yourself in a situation where you lose that right of way if it is not registered with the Property Registration Authority before the 1st December 2012. There is no requirement for a Court order in these circumstances, but the requirement to register before the deadline still applies.
New time frames and procedures for Rights of Way after 31st November 2021
The new rules have also changed the way new rights of way will be acquired from 2021. A right of way used continuously for just 12 years after the 31st of November 2021 will be registered once the Court has confirmed its existence.
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.
I live in a housing estate of 3 beds with garage attached to the side. When we moved in, we like many of our neighbours converted the garage at the side of the house into an extra room. There is no side entrance so now we face difficulty bringing materials from the front through to the back garden. We had anticipated this but thought we could access the garden from the rear.
Our back garden backs onto what was once a portion of an old railway line and is now a green area to the side of another housing estate. It is Council property but the residents association in the other housing estate have ‘claimed’ it and cut the grass on it. I found out from online records that they did the same with a seperate patch of unused council land to the other side of their estate and when the council attempted to dispose of it they all objected and stated they had been maintaining and using it for years. In the end the decision was made that this other piece of land wouldnt be disposed of and left to the use of the estate residents.
When we moved into our house we
couldn’t fit our sofa in through the front so we carried it across the council green to the rear of our house and in through our rear garden. During this we were attacked by a resident of the other estate who literally screamed and shouted at us about using the green as a thoroughfare and demanded to know why we had installed a gate in our rear fence. They told us we had no right to do so etc etc.
The problem we have now is that I want to get a landscaper in to do the garden and the only way they can do it is if he crosses the grass area into our garden. I intend to write to the residents association to ask their permission out of courtesy obviously but in the event that they refuse do I have any rights to cross this green area to access my own property?
Thanks in advance John, great article by the way.
There is provision to make a District Court application to gain access to neighbouring land to carry out works to your property. Obviously this should be the last resort and a letter would appear to be the first step.