John M. Lynch Podcast on Registration of Rights of Way
The Land and Conveyancing Law Reform Act 2009 was introduced by the government to modernise conveyancing transactions. One of the innovations was to make the registration of rights of way mandatory.
What does the term “Right of Way” mean?
A right of way arises if you own a piece of land and in order to get to it you must pass over a piece of land or roadway which is owned by someone else.
Rights of Way, also known as easements makes it easier for one landowner, if s/he needs to get across someone’s land to get to his/her own 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
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.
Rights 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 is 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?
These are by far the more difficult ones. 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 November 2021.
There is also a straightforward procedure for registering Rights of Way in cases 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 for people to realise that for the next 9 years they 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 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.
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.
Hi to me it seems that with the new law on private roads they have not made it easier .
If you live on a pirate road with say 6 houses and 5 farms you need you may need a lot of signatures and on every private lane there is someone that will not sign . And even if one does sign for a person that person does not have to return the favour . This system is very open for abuse.
Why can they not give everyone with property on a private road give a right off way?
Regads Hans
Hans,
The system of registration is a way of making rights of way official. However , you still have to establish a legal entitlement to such a right.
Hi John
A bit of a tricky one. My father bought a house many years ago with a drive that has a right of way to a yard at the back of our property the man who used to own our house lived in the yard and ran a school bus service from the yard to which we had no problem with as the man was very respectful of our privacy since my father passed on i have inheritated the house and driveway and the man who used to own the yard sold it to another man who runs a school bus service from the yard. Over the years his business has grown a great deal and when I say a great deal we are talking 12-15 42 seater coaches that run from early morning until evening time,the drivers come and go at all times during the day and weekends and access use the drive way with great speed, during the summer months we have buses coming up and down our drive way at 3 and 4 o’clock in the morning. We have approached and asked on numerous occation’s if the noise levels and the unusual times of night the drive way is used can be reduce as to which we have been told a sturn NO and when we have asked buses have been left with engines running late at night when returning from a summer festival or concert run in a we think to annoy us, this has gone on and gotten worse over the years, we are looking to start and family and cannot do so with such great and annoying activity on a daily basis. I’m just wondering is there any advice you can give in regards to a commercial business being run from a residential area and a drive to a private dwelling being used at a very high rate on a daily basis.
Indeed it is a tricky one. Here a few preliminary observations on the facts as set out . Firstly , each case depends on the facts as proven. Secondly , if we accept that there is a right way, the extent of the right of way is the issue. Thirdly, the question is whether or not you can have excessive user of the right of way . The law would appear to be that unless the volume of traffic alters the nature of the right of way or destroys the way itself this is not excessive user and cannot be stopped There is also the issue as to whether the use of the neighbouring property constitutes an intensification of use which would require planning permission. A very tricky question and a very tricky answer!
I purchased a site in 2011 along with a 500m lane way. A right of way to two separate farms was part of the agreement. Since my purchase of the lane way and site one of the farmers has sold on 3 seperate sites and houses have been built. As planning permission was sought for each site I have signed a letter to say I was allowing a right of way. Now the farmer at the end of the lane way is opening up stables/livery etc.
I dont have a problem with this. My concern is riders using the lane way and an accident occurring on my lane way. Can this farmer use my lane way to run his business or does the right of way just entitle him to travel to and from his property. Should I just talk to the farmer about insurance or do I need to send something more formal to address my concerns.Relationship with the two farmers whom are related is not good as with each planning application the council has insisted that a contribution be payed to upgrade the lane way that fronts each new site.They refused to pay any money over even though it was a planning condition. I stuck to my guns and refused to sign over right of way until monies was payed towards upgrade of lane way.
Thanks Derek
Derek,
As understand it, you have a right to use a lane way and have no objection to another user using it for access to stables/livery. Your concern is any liability that might arise from such user and the insurance cover for such risk.
I believe that it would be a wise precaution to ensure that such risk is , in fact, covered by the stable/livery owner. A polite note to that effect to him should suffice.
It is an interesting question as to whether you would , as a user of the right of way, have any liability in any event.
Hi John.
My query is does the person looking to establish the right of way have to have been the one using the right of way for the 20 years or does the path just have to have been in use by anyone over the 20 year period. My mother has a driveway that goes across the corner of another man’s land. This man is being a nuisance with looking for her to move her driveway. The driveway into the house is there well over thirty years, maybe even forty, and been used by the owners of the house which used to be this man’s brother who left the house to my mother. If he is not agreeable to registering the right of way would it be much of a court battle seeing as the driveway has been there so long? Thanks, Damien.
Damien,
The long and the short of it , is that each case will depend on its facts. However,as a general statement ,if the person or person who used the driveway was a previous owner, then you should be able to make an application for the registration of a right of way.
Hi John,
There is a path at the end of my garden that has been in use since the house was built in the 1920s. We live on a country lane and there are approx 8 semi detached houses on it. The landowner of the path, who is also developing a number of farm buildings up the road, is in the process of erecting a fence at the end of all our gardens. This fence will not only stop my access to the path but will mean that my children will have to use a fast flowing country lane as an alternative. Selfishly it will also ruin my countryside views. The landowner is using Health and Safety fears as the reason behind erecting the fence – ie to stop us from having any accidents on his land as well as the use of sprays and large machinery in the orchards.
What can I do to stop him erecting the fence and what rights do I have to access a path that has been in use since the buildings were made?
Many thanks
Nick
When you say, he is erecting a gate at the end of your garden , I am assuming this is on the lane that he owns. If not , he is erecting it on your property and would not be entitled to do so.
The question, on that assumption, ( and only an assumption, as you would have to establish ownership of the strip), is what can an owner of land over which you have a right of way do to such lane way
The answer is , he can do anything that does not , in the eyes of a reasonable person (aka Judge ) , interfere with your use and enjoyment of such right.
As you can understand that is a very difficult question to answer and will depend on how far you are prepared to go with your objection and risk the outcome of a third party ( judge) perspective.
As always, the less expensive option is to talk.
Hi. Just a quick question. Can a farmer erect an entrance to a field at any point on the road way? A local farmer has recently created a new gateway into his lamd next to my home with a dirt track going around my site. Consequently, there are cattle gathering at the gate and they often wake me with their calls for feed at an ungodly hour. It also takes from the value of my property. What recourse do I have?
Mairtin,
There are a number of potential questions in there – can the farmer erect the entrance? As a owner he is entitled to do what he wishes subject to certain restrictions. I am assuming that this is a recent occurrence, in which case, he may need planning permission. This depends on the roadway, its ownership and the type of roadway . If it a public road , he may need planning. The second issue is the cattle : if they are causing a nuisance this is actionable under general law and under noise legislation.
John,
What is the situation in regards above problem if the entrance was coming on to a public lane way not a roadway? Is the a limit to the size gate that can be erected as its for farming purposes?
Not sure what your first problem is – but if its a public laneway the situation should be similar to it being a public road where the public have access. The erection of a gate is a matter for the owner of the land over which one has a right of way – and as long as it does not prevent the exercise of the right of way its size should not matter.
Sorry John the original issue is I would like to open a gateway onto the lane way and an neighbor stopped us by standing in front of the machine saying he owned our ditch. This was just a ploy to stop are progress that day. We abandoned that day as it became an unsafe job. To be sure we checked our maps and half the lane is mapped to us, and the other side is mapped to a different neighbor. The neighbor that caused the hassle has no land till the end of the lane and has a right of way through the lane only. He then send a letter to say that there was no planning permission to open an entrance and he would be objecting to the entrance when the planning will be applied which it wont be.
hope that makes sense
You would need to get the agreement of the neighbour who owns the other half in order to carry out any work on the laneway .I am not sure without more detail as to whether or not planning would apply . However, if there is an access / exit onto the other laneway , then the issue of permission should not arise . BUT I would need to see the full details to give a definitive answer.
Dear john. We share a drive with a difficult neighbour . We bought the house from her parents who were reasonable . The drive goes through her property up a steep hill to our house. The surface washes away in the winter and needs regular maintenance. We paid for the last surfacing and left a note saying we would do it again as it is almost impassable . She said she wanted to consult a solicitor. That was two months ago and still no word. We need to get it done as there have been numerous minor incidents and cars have got stuck on it. What can we legally do?
Margaret,
You have a right to repair and maintain the drive to enable you to exercise your right of way .
Hi my brother who is a farmer approached his neighbour, also a farmer, about building a house a few years back, partly a courtesy call and also to see if any objections would be raised. The neighbour said he’d always expected it and it was fine. Relations between the two have always been good. However fast-forward five months and neighbour objected to the planning, it was passed by the county council, then appealed to An Bord Pleanala, again it was passed. Now his neighbour is trying to claim that he only ever gave him permission to use right of way and this was for agricultural purposes only. This right of way has been in our family for three generations. My brother’s land is landlocked and can only be accessed via this right of way – they suggest he can drive over fields – something that is impossible particularly in wet weather. My question is can the neighbour now restrict my brother’s right of eay to agricultural (allowing big machinery etc.) but refuse residential right of way or is it all and the same? No where in the land folios etc.is there a mention of rights of way.
My brother is a young farmer with a son and currently they reside with my elderly parents. The whole thing has been so stressful. Any advice would be welcome and I imagine with the new Act on registering rights of way this is going to be common place!
Regards
Kathleen
Kathleen,
Indeed you are right, many of these potential disputes will need to be addressed sooner rather than later. The short answer to your question depends on what type of use the right of way has been subject to for those three generations. If I assume the land in question was used for agricultural purposes and therefore accessed via the right of way and that the neighbouring farmer set out this as one of his grounds to object to to the planning then the question is whether you can use it to access a house built with planning permission. My initial view would be that a right of way for agricultural purposes should include a right of way for access to the house. But the long and the short of it, is that your brother may be forced to make an application. This might, however, from a cost point of view, act as an incentive to resolve matters.
Hi John
Thanks for an informative article. I’m in the process of buying a house halfway up a private (7 house) laneway where no one has registered a right of way. The vendor and Estate Agent are unfamiliar with the 2009 Act. The mortgage co won’t play ball as they are concerned re registration post 2021. If we pay cash we can apply for a mortgage once registered. Does registration, assuming the other landowners agree to grant right of way, take a long time?
Regards
Fergus
Fergus,
Thank you for the feedback. Has the owner of the land over which you have the right of way been contacted to consent to either signing a document confirming the right or to agreeing to consent to an application to register the right of way? The first option should be acceptable to a Lender and is the cheaper option.
A neighbour has a right of way through my laneway to access a turfbank. Subsequently he bought another turfbank closeby. He has rented the turfbanks to a contractor who has also rented other banks nearby. The contractor has started cutting all these turfbanks together and is both drawing material to the banks and turf from all the banks through my laneway. However a right of way only existed to draw turf from the original turf bank not from all the other turf banks. What is the situation here. All of the banks have been amalgamated together now into one.
John,
My quick answer depends on how the right of way was created -by deed or over time! If by deed, the deed will determine the extent of the right of way. If over time ( by prescription) the usage will determine the extent of the right .
It seems, from what you say , that the right as now exercised goes beyond the existing right.
thank you for your reply John, each bank has a different deed but only one has a right of way through my land. However all the banks are now being accessed through my land as they have all been amalgamated but this has only happened in last 4 years. Thank you all the same for taking the time to reply to my query
John,
It is difficult to be definitive in responding to your situation without seeing all of the paperwork.
However, as a matter of principle , a right of way exists by a dominant tenement over a servient tenement and , therefore, it should not be possible to use one servient tenement as a right of way for many dominant owners.
Dear Mr Lynch,
I have a short question concerning this topic. Someone has legally established the right of way via my private road (the only road that I can use to access my house), but makes use of my road with heavy trucks/machinery, which leads to destruction of the road structure so that I cannot walk, ride my bike or car on the road anymore. Moreover, he has repeatedly destroyed fencing etc. on the edge of the road. He refuses to contribute financially or directly to the constant repairs that I have to do in order to keep the road accessible for myself (I have suffered health damages as a result). (For instance, I once suffered from a head injury at home and had to walk down the road with the injury as the ambulance could not drive up to my house.) Is there a possibility to take legal action against the person that has the right of way?
Best,
Tanya
The short answer : if you can establish that he has used the roadway in the manner that you suggest you should be able to claim a contribution to its upkeep ; furthermore, having a right of way does not entitle a person to cause damage to your property: thus giving you a further avenue of claim.
Thank you very much Mr Lynch for your swift reply, that is what I suspected.
Have a good day and best regards
I sold part of my land to a person ” in trust ” in 2006. I retained easements for services ( water , sewerage , electricity ) on the lands I sold and these services were to be provided by the purchaser at his expense . However this was not done despite continued promises to do so . The property has now been subdivided into two folios and on checking with the land registry I see that my rights of way for services are not registered . What recourse do I have to maintain my access to utility services through the sold lands .
Rgds.
Paul
If easements were retained and documented, then it should be possible to apply to register such easements in the property registration authority.
Hi john
just a quick one, does a right of way that has existed for decades dissolve back into the original estate if a new entrance has been opened up for the property, even if the right of way is used on occasion when walking .
thanks Phil
If a right-of-way is there, it is there unless extinguished – just because another one has been created does not extinguish the former
hi john………..and thank you for the very good article above and for the opportunity to ask my question……………
i’ve just bought a little house the back garden of which i can access through the end house next door. My garden is the only property with use of this right of way. If I buy the end property next door, now up for sale, could i sell it with the right of way and could a purchaser then build, subject to planning permission, of course?
thanks you again
eileen fitz
Eileen, if the end property has a right-of-way you should be able to sell it with the benefit of the right way but this is something that would need to be checked on the purchase documents
Dear Mr Lynch,
We bought a property 8 years ago and currently living in it, there is a right of way through this property into Coillte’s land (we are the last house of a cul de sac than ends in the forest). To our understanding there is only 2 people who have the right of way: our neighbour into his field opposite to our land and Coillte so they can use it to get timber out, because Coillte’s land is public, the right of way is use by everybody and I mean every person has the right to get through our land. Also various events take place like hill walkers, hunting, 2 massive bikes competitions, hill runners competitions, etc. We were just wondering how could we find out if the right of way is public or private and do you think it will make any difference to the volume of people and competitions that can take place because Coillte allows this.
Also it took us 7 years to move the road few metres further from our front door now the County Council needs to dig for the water pipes, this will mean huge damage to our property: stone wall, road, etc but they say they are not responsible because we have moved the road without consulting them, but we waited 7 years plus solicitor fees to get permission from Coillte and our neighbour to move the road (the 2 people who appear to have the right of way).
Thank you so much for all your help
Regards
Cristina
Well, there is a lot in this. Again very hard to make any definitive observations without seeing all the paperwork. The fact that the public come over your property does not necessarily mean that it is a public right of way. You have to establish the history of the right-of-way and see whether or not the public had acquired a right. Maybe this is something you might email me about,with the paperwork, and I will have a look at it.
Hi John
I bought an old cottage on some land, refurbished it and lived in it while building a new bungalow. There was a right of way to the old cottage that the farmer used for generations from a road at the back of his cottage. We moved into the new build and sold the old cottage we also built a private road at the front of the cottage and our house which we gave a right of way to the person that we sold the old cottage too. The old cottage is now empty and is up for resale. My question is as there is an ancient existing right of way on the deeds can i revoke the right of way over my land as I breed horses and can i stop vehicles driving over the road i built.
Thomas, it is very difficult to answer your question without seeing the paperwork. If you sold the cottage with the right-of-way it may be a little bit late to attempt to extinguish the right away – a little bit like closing the gate after the horse has bolted!
Thank you for your reply, yes the horse has bolted. If i buy back the cottage will i be able to extinguish the right of way i gave to the cottage as there would be no dispute only me involved. The ancient right of way would still be in existence in the deeds which i have no problem with.
If you are the owner of a right of way , you should be able to extinguish it.
Hi John,
We live in a terraced house and are considering letting out a granny flat in our garden. The only access we have in through the house however our next door neighbour has a side entrance to his house and we are wondering how to go about applying for access to our back garden using his side entrance. All advice would be very welcomed,
Karol
You would have to ask the neighbour for permission unless you already have a right of way.
hi there
I own a property in the centre of a small town. To the rear of the property is a small plot of land that is totally blocked in by surrounding properties apart from the rear that backs onto a small stream. 2 of my neighbor’s have rights of way through this site to access this stream. The stream is totally overgrown and the access has not been used for that purpose for years. The problem is that as I do not really use this land one of the neighbour’s has started leaving their kids play there ……am I right in saying they are only allowed pass through and not actually spend time on this site…. I am also considering putting up a gate….. thanks for your help
Declan, if you own the land , you can usually put up a gat as long as it does not restrict the rights of way .
Hello John,
Very interesting thread.
We live in our house, what can only be discribed as what was somebodies back garden. The only way into our property is through an entry. The property in front of us was orignally a row of cottages, and a partition wall was build to make the entry. I have a copy of the Conveyance with map for the right of way, (which has been in effect for approx 100years) It would appear from the Conveyance that the right of way is not owned by the people who live in the cottage, but somebody who lived down the road, whom I believe has since died. How would one go about finding out who actually owns the right of way? Also the people who have now moved into the cottage have an extractor fan in the entry and whenever we walk through the entry, the smell of food is constant,the grease the extractor fan is throwing out has gone up on the ceiling and is very unsightly. Thanks in advance
To find out who owns a right of way , you would usually start by looking at the title documents – after that you would check with the owners .
Food smells may come under nuisance or pollution control – a bit outside my expertise !
The right of way is open in more than 40 years and now the owner suddenly blocked the road where we walk. And he said that the rigjt of way is gor them only what should i do.?
If you can prove that you have used it as a right of way for over 12 years you can make application for a formal grant of right of way.
Hi John,
Recently a man in ownership of fishing rights attached to land adjacent to our property has begun trying to claim right of way access through our land. His family have sporadically used a different access path many years ago but not for >50 years and never him personally. The claimed right of way is not registered anywhere. He also wishes to give other parties full access under the same rights. I was just wondering if he does indeed have a claim to these rights and if he is allowed grant access to 3rd parties if so? Hope you can help.
Kind Regards,
Trevor
You would need to do a search to see who the owners are and you could also check with neighbours or former owners about the use.
The issue here is whether or not there is a right of way , and if there is , has it been abandoned.
You cannot grant a right of way to third parties unless they were entitled to the use of your right of way.
It is hard to be more precise without all the information .
A Friend of mine has a right of way problem ,he agreed to a right of way done the side of his house many years ago the person he made the agreement with has since died.does the agreement pass on to his children.?? Who have now sold the house,but they charge the new owner for the right of way agreement can they do this and should the third party be told about the new owner before the sale went through.
If it is a legally binding right of way it would normally inure to the benefit of any new owner.
Thank you for your reply, this right of way was made before my friend bought the plot of land to build his house,the right of way runs just three feet from his back door,and right through his back garden,with complete loss of privacy, the last owner who had title used it a few time over the years but it has not been used for some ten years, do we any redress through lack of uses.the title was sold to the new owners for a bill of sale,and not inheirited by deed can we use the two point to block the said right of way is there any other avenue we can go down to close this right of way??
I am unsure how one could argue that the manner by which the property was purchased could have a bearing on the existence of the right of way .
Thank you for your reply, this right of way was made before my friend bought the plot of land to build his house,the right of way runs just three feet from his back door,and right through his back garden,with complete loss of privacy, the last owner who had title used it a few time over the years but it has not been used for some ten years, do we any redress through lack of uses.This any other way to try and get this right of way closed.
It is open to you to argue that the right of way has been abandoned through lack of use – however this is a matter of evidence.
Hi there
i bought a old town house that i rent out since 2007
the only access i have to get to my back garden is through my neighbours back yard
there is a gate into my yard so it is clear that this was agreed way back
could be 20-30 years
the house is currently for sale and i rang the auctioneer informing him of the right of way. he told me if i don’t have it in writing that it doesn’t exist
obviously if the new owners buy they will want to do up the house as it is falling down
what should i do
the auctioneer clearly wont tell any prospective buyers as to not put them off purchasing the property
thanks
There is no doubt but that a written right of way is by far the strongest evidence of the existence of a right of way. However if you have been using this as a right of way without objection and with the knowledge of the owner for the last 20 years then you should be able to formally register a right of way. I would suggest writing to the owners/neighbours asking to confirm that right of way and then going about registering it.
Hi John
Can you help? There is a right of way owned by local council inbetween two rows of terraced houses. I live at the end of one of these rows so the right of way runs parrallel with my house/[email protected] years ago i asked the council to put in place some bollards to stop people coming up and down with quadbikes. At the other side of the ROW the house is owned by the council and around 4 years ago new tenants moved in. They proceeded to build a garage in their back garden (without any permission from the council) with double doors facing onto the ROW. The bollards were removed and they started to concrete the ROW to make it easier to bring vehicles up into this garage (namely rally cars). This garage is @25ft from my living room and causes noise disturbance and also a lack of privacy from the upstairs of my property as the doors of the garage are open with cars/tools etc brought out onto the Row and i basically have an audience outside my bedroom window.For over 3 years now i have been in contact with the council regarding this matter the council have ‘asked’ them to return the bollards and apply for permission for garage this was one year ago. Todate nothing has been done. Where do i find out about laws re building/access via right of ways? any help would be appreciated.
It seems to me that you should consult your solicitor who could take the matter up with the local council.
Hi John
I am considering purchasing an industrial Unit. There seems to be an issue with right of way. there are several units in the group. would there not be an automatic entitlement to right of way into an industrial area?
Thanks
L
You would usually expect that right of way and other easements should have been covered in the development of industrial units.
Hi my neighbour recently sold a piece of land where the only access is through the private road my family owns. The neighbour has a right of way through this road as she has other land beyond our private road.
Does the new owner get a right of way through our private road even though the neighbour still has right of way to her other land?
Thanks.
In a nutshell , yes. If it is a valid right of way it passes with the land to the new owner.
we have a right of way named in the registered title to our house, and this serves our terrace of 6 for shared access to rear gardens from main road. I want to alter it and presume I should seek the express permission of the owner – except no one knows who the current owner of the land is and it is not specifically registered.
In the absence of finding the owner, how can I acquire the land to carry out improvements?
Correct , you need to consent of the owner to alter a right of way .In the absence of finding the owner you will carry out the works at your own risk. However , if it is an improvement as you say , will the unknown owner object!
Hi John,
Myself and another neighbour have a right of way over a laneway belonging to another property owner. What is the legal position on repair and maintenance of that laneway and also, if costs are shared, is public liability also shared?
With many thanks.
The usual position is that when you have a right of way you also have the right to repair (as opposed to the obligation). On the issue of public liability where the right of way provides access to property you own , you should insure .
Hi John.
My father often allowed a neighbouring farmer whom he was friendly with pass through one of our fields so the neighbour could access some of his land. The two were good buddies and even though the neighbour had a registered right of way in at another point this way was quicker and so there was no issue. I now own my father’s land and the friendly neighbour’s land was sold after he passed. The new owner is claiming right of way. Can he do this?
It depends on a number of factors – but you would need to give me a bit more detail . The short answer might be – if it is deemed to be a license rather than a right the claim will not succeed. Furthermore , claiming it as a right does not make it a right. Is your father still alive to give evidence on it.
Thanks for your swift response. No he’s not unfortunately. The field that my new neighbour is claiming a right of way into is very rough ground. Unsuitable for most types of farming. He hasn’t farmed the field in fifteen years. But he wants access now and started using the supposed right without permission last year. I approached him and asked him not to use my field and informed him (of what he already knew) of his registered right of way to the dominant land. I’ve a feeling he wants this right as a means to get one over on me rather than for necessity. I locked my gate last year shortly after things went south.
He is the one that has to prove that he has a right – so if he persists he will have to make an application. It would do you no harm to formally write to him to deny the right.
There is a lane behind my house which I use to access my garage. How do I find out who owns this lane? Also to access the lane I need to drive onto a commercial property. How do I find out who owns the stretch of road used to access the lane and if there is a right of way attached? The owners of the commercial property are in the process of narrowing this road which is making it difficult to gain access to the lane. How do I find out what the width should be? I have checked landdirect and the commercial property and access road is showing as not registered?
I would need to see all the paperwork and the location before giving a definitive answer. But without seeing either the paperwork or the physical location, the answer is usually a combination of seeing what you can find from the paperwork, making enquiries locally and making various searches – e.g. the valuation office, the rates office , the Property Registration Authority .
We are looking at purchasing a property at auction 25 02 2016 however the property is land locked. There was a deed to cross the farmers land dated 1911, via a joint track i.e. for use both to get to each property however, the farmer applied to move the driveway without informing the property owner in 1995, this was allowed in a planning application and the old track was closed off. The property we are interested in from what we can find out never objected to the closurer. What is the best way forward to try and resurrect the access via the old deed or to apply for a new right of way to the property?
I would need to know a little bit more before giving a definitive answer – but if the historical right-of-way has been abandoned, the easiest answer would be to look for a further and formal grant of right-of-way.
If a person who has right to access a right of way gets injured whilst using right of way is the landowner open to be sued???
If you mean someone other than the person who was granted the right of way, the owner and occupier of the right-of-way may very well have a liability and could be sued. Accordingly, it is always good practice to take out insurance as both the owner of the land and user of a right-of-way
Hi John ,
Good to see this article
A query for you .
We visit an old Mill on a river near our house via a lane off the Public Road. The lands bounding the access lane are owned by a quarry and by a farmer on either side. A house at the end of the lane was bought by the quarry and demolished and the quarry are moving spoil slowly into the lane that serves the Mill and river beyond
No one else uses the lane apart from Fishermen in summer .
Has the Farmer or Quarry the right to block the lane in any way ,Even if either of them own it Which we speculate that the quarry has. Have the people in general a right to have this lane open as they would all have used it for decades by foot.
Can they remove the right of way ,
thanks
Donal
The quickest answer to your question – is that someone cannot remove a right-of-way without the agreement of the owner of such right, on the understanding that such right is in fact a right-of-way in law.
Hi John,
A small area of my property edges part of the right of way which has been granted to my neighbour but does not form part of the right of way. The area is big enough for me to keep my bins and sometimes park my car there. So my neighbour would have to drive past it to access his property, which is no problem.
He recently asked could I tidy that area as he had to look at it. I have no money to do anything with it but it may be that he funds the works to it.
If I allow him to pay, does that give him a right on it?
If you own it and he is happy to pay for it to be tidied , I cannot see how that would give him any proprietary rights.
Thank you John.
My mother recently purchased some land. People had permission by the previous owners (that owned the land for 30 years) to walk on the land. The local parish council are processing a right of way application by local residents concerning this period of over 20 years useage. Should she continue to let people use the land?
If the local parish council are successful in establishing the right of way , she will not have the option to prevent people walking over the land. Presumably she will be served with notice of the application and can make her objections known.
Hi john
My neighbor has a right of way to his house though my farm the lane way goes past his house, he is now causing trouble when we pass our cows up the lane past his house saying they are making the place dirty ! We could use a field to get them to the land where they are grazing but it will do damage to the field as the cows are dairy and are milked twice a day. I own all the land around his house and have a ROW to the field am I right by law to use the lane for access to my land for my cows ?
Thanks
Barry White
If you own the lane you can , if you in turn have a right of way , it depends on the nature and extend of the use over the years.
hi
the county council purchased a piece of land from my mother and it specified for use as a quarry. does this mean that it reverts to my mother when this quarry use is discontinued.
billy
If the County Council bought the land , then it is unlikely that it will revert to your mother.
Hi John,
A friend has signed over access and right of way on her property to her sister.
The land belonged to their parents, her sister owns the house, and my friend owns a derelict schoolhouse right next to it. There is only one gate which she signed over as right of way to enter the house.
The house is occupied by her sister, but now her sister has put up scaffolding at the schoolhouse, as well as a dog run around it, and put a new lock on the schoolhouse door.
My friend now wants to sell the schoolhouse, what are her rights here, if she has granted access to her sister?
Thanks for your help!
If she has a written grant of right-of-way there should be no difficulty.
Great article John,
Could you advise here:
We are a residents committee comprising of 20 or so terraced houses.There is a cul de sac at the end with a gate leading to a laneway.For years nothing was on the other side and the gate was locked.
Before I say anything else, according to the county council we have right of way.
A few years back a house was built at the top of the laneway and suddenly the lock was removed.This suited the property owner for pedestrian access of family and friends(who parked in our estate) ALSO they dragged their wheelie bins into our estate for convenience.Worse, word spread among office workers and what once was a quiet area has turned into a thoroughfare of 60 workers back and forth.We’ve also dog foul and have a go carparkers.The residents agreed to lock the gate….but the house owner keeps removing the locks by force.
Any advice would be welcome 🙂
hello, i was wondering if you could give me some advice.
the previous tenant who lived in my house had access into the garage and driveway(which are located in our back garden) for years by driving down the side of our property and into the garden. It has a drop curb from the road, it also has a public footpath sign and a concrete bollard just past my garage on the footpath running behind my house into a field. In the time it took for us to move in someone has put a small metal bollard up at the drop curb to stop us being able to access our garage. Even on google maps you can see the previous tenant had parked on it (which we wouldn’t do). We asked the neighbours who it belongs to and why its up, they all tell us it’s each others so we still don’t know who put it up and the reason why its up is because they don’t want people parking on there. Do we still have right to access this? could we legally removed the bollard? my neighbor has been using it to park vans on whilst she is having her extension built but always puts the bollard back up saying she has permission but yet we don’t know from who as it says public footpath. Also we had a council warden come round to make sure she wasn’t fly tipping down the side of our house and he asked us if we had put the bollard up and when we told him no said but isn’t that access to your garage. sorry this is a bit long, i’m not too good at explaining things but i hope i’ve explained enough.
Thank you
If you are a tenant or an owner ? If your landlord can confirm a legal right of access ,then you should be able to seek to use the access .
We are the current owners of the property and have just put the property on the real estate market. We want to know what the people, who have the deeded ROW can do to the land that is in this ROW. The ROW has never been accessed in the 20+ years that it’s been in the deed. Potential buyers of our property are asking if the trees in the ROW can be cut, since half of it is forest, or if a driveway/road can be put in, that would completely alter the existing property, the other half of the ROW is lawn. Side note: the land that this ROW accesses is accessible from many areas-it’s not land locked.
The Land and Conveyancing Law Reform Act 2009 allows for an automatic statutory extinguishment of unregistered rights-of-way acquired by prescription or by implication on the expiry of a 12 year continuous period of non-user. This does not apply to a right-of-way granted by deed where there would have to be an intention to abandon the right-of-way.
Hi John,
My new neighbour has been accessing a parking space at the front of their property via my drop curb and by driving across my drive while they have a skip for renovations placed temporarily blocking access via their drop curb to their parking space. The previous owner rented the property to a tenant who for 2.5years never once used my drive to access the parking space. Similarly the tenant before that did not access their parking across my property. I intend to erect a low fence to stop the new neighbour continuing this practise of using my land to access parking on their land. Is it possible the new owner can claim a right of way by right of prescription earned by the previous owner/landlord before renting out the property? And/or is the fact that none of the recent tenants have since 2007 driven over my drive by way of access to the neighbour’s parking space enough to mean any possible right of way earned by perscription has long been abandoned? Also is the fact that once the skip has been moved the neighbour can access directly their own land without passing over my drive enough to allow me to erect a low fence regardless?
Regards
The quick answer is that unless this right away has been exercised for a period of 12 years then you can direct your fence. If there is a question of abandonment there must be an intention to abandon.
We are selling our home that has a deeded ROW clearly defined by width along the propetrty line, in the deed. Our question is use, this ROW has never been accessed in the twenty plus years it’s, the person with the deeded ROW has only informed us that they have they in fact have a ROW., but again, the ROW has never been used. We have informed the realtor if this ROW. Our question is this, what can the people with the deeded ROWdo to the land defined? Currently half the defined ROW is forest, the other half has always been part of the lawn. There’s nothing that’s states what the right of way “might” be used for. Potential owners are asking if the trees could be cut down, or a drive put in
Good Evening,
Such an informative page and a very interesting read.
My cousin is the owner of some agricultural land which he rents to a local farmer. There are three houses on the property with a registered right of way for access to each of them. The farmer on ocassion has cattle in the fields which take shelter and wander into the lane as it is not nor has it ever been fenced off. The aforementioned situations and agreements have been in situ for some 15/25 years. Over the years, one of the parties with a right of way made some grumbles about the cattle in the lane however, have never contributed to the upkeep of the lane some 1km in length, which I believe they are not obliged to do. In any event, my cousin received a letter requesting the cattle be kept off the lane as they are all of a sudden posing a threat/inconvenience!! In all honesty the farmer may have them grazing 4/6 weeks a year and none of the other property
Apologies I clicked submit in etror!
None of the other property owners have complained and are happy with the current position. In reality the disruption is minimal.
Can the complainant take any form of legal action which might be successful?
Should my cousin give in to their demands then it is highly likely that the farmer will no longer wish to lease the land leaving him in a vulnerable financial position.
I would hope that all of the above points to a favourable outcome should the claimant progress maters.
Thank you in advance and I look forward to hearing from you with interest.
This is a very interesting question if I understand it correctly – your cousin owns the land over which a number of people have a right-of-way. He has also rented land to a local farmer whose cattle can access this unfenced right-of-way. Can the owner of the right-of-way complain about the cattle? The short answer without going into all of the details is that he would have to prove that the cattle interfere with his use of the right-of-way.
hello Mr Lynch
Our neighbour has a tarmac parking apron in front of his building that widens the public pavement ( 3ft 6 inches)for a length of about 40 feet where is then joins and matches the formal public pavement width. For 80 years the public have walked over the tarmac apron without any interference by the owner of it.
Can you act for us to register the apron as a public right of way? If so what are the likely costs? Please e-mail me
Hi,
I am looking for some advice, we own a private right of way in the town area and have let our neighbor use it for the last 20-30 odd years, they mainly just used it once on a Sunday or twice on a Saturday, and if it was anytime during the week it would be an odd occurrence. We never really had any issue over the last 20-30 years but lately the they have unknown people accessing it everyday (and they have permission from our neighbor), either to do small jobs for them or just to park in their yard. They would enter and exit the right of way multiple times a day, everyday of the week. We have an adjacent business to this right of way and would like to limit or deny future access to the right of way.
It might seem extreme but the people accessing the right of way now are not as friendly as our neighbor and have verbally abused people that have marginally block the laneway. At what stage might they be in breach of the right of way? The sad thing is we have never had any problems with this for generations but our neighbor is old now and won’t listen to reason.
Background on the right of way, the right of way gives them access to the back of their yard and it is the only entrance for them to drive a car into.They have access to the front of the building from the street, but only use our lane-way to park their car.
My ideal outcome would be to reason with my neighbor, but i suspect his mind is now changed by others and his health is not the greatest at the moment, my greatest fear is that these people will keep accessing the right of way in the future causing us unnecessary hassle, i would like to know what would make them in breach of the law and over time i might gather evidence to prove that they breaking the law.
Regards,
John S.
I am unsure as to whether you own a right-of-way or your own the land over which a neighbour has a right-of-way. If you own the land then the question is whether or not you are have granted your neighbour a right-of-way; if you do not own the land then you cannot grant a right-of-way over a right-of-way. If you want to email me at [email protected] I can take the matter further.
Hi,
Does a right of way need to be registered on the land folios of both the dominant and serviant tenements?
Hi. Does a right of way need to be registered on both the folios of the dominant and servient tenements?
There is no obligation to register presently, so if there is a former grant of right-of-way in writing that should suffice. There is a difficulty however insofar as a subsequent owner may not be bound by right-of-way which is not registered.
Hi,
We have been given a site by my grandfather. My Aunt was given his original house and the only way to access our site is through the driveway adjacent to her house, by mistake the right of way was signed over with the original house. There is an old letter from my grandfather to his solicitor staing this was not his intention but nothing was ever done about the letter or rectifying the error. He wanted each site to have access. My aunt is refusing to grant me right of way, is there anything I can do?
It is difficult to make a comment on this without seeing the paperwork. As I understand it the ground over which access could be exercised was included in the transfer of the house to your aunt. The question that arises is whether or not there was a formal grant of right-of-way or whether it was simply an access route to the site. Is it the case that your grandfather intended to grant a right-of-way and did not do so. If this is the case and if there is no formal grant right-of-way then the only way to establish a right-of-way without the agreement of your aunt is to prove that you acquired one by prescription over 12 years.
Hi John. Another sticky one! There is 13 ac. of woodland behind our house which cannot be accessed from road. It is in my wife’s name as is her Aunts property and house which we are built onto. About 25/30 years back, my wife’s Grandfather sold a site beside us to a man who built his house on it. Now sandwiched in between us and the neighbor is a little plot of land with a mobile home belonging to my wife’s Aunt and Uncle who have since passed.
In turn, between this plot and the neighbor was a 12 ft. right of way providing access from the road to both mobile and the woodland.
Unfortunately my wife’s uncle became ill a good few years back and the mobile was used less and less, something the neighbor took advantage of progressively. Firstly by extending his fence and pier across the r.o.w. entrance and by sowing shrubbery in the r.o.w. to fill it in. We were informed at the time by him that the r.o.w is not on any map and if wanted we had to buy it from him. We took it then that was that. Now upon reading some cases here I’m starting to wonder.
Both mobile and wood are now landlocked apart from access through our tarmac driveway then along a grass pathway. The wood however cannot be accessed by any machinery without us tearing through our garden.
Any help appreciated. Thanks. (I have also enclosed a file of the area)
You would have to check the title of the various owners to see whether or not there is, in fact, a right-of-way. It may also be that there is a right-of-way by prescription which would have to be established by proof over the required 12 years. You would also have to be satisfied that it was not abandoned.
Hi,
I wonder can you clarify for me can the first paragraph of Form 67 be changed. I am giving a right of way over a laneway to a neighbour but I feel the wording of the first paragraph is very submissive. Also as the neighbour does not reside on the property and may sell it at a later date I want to put in strict terms and conditions. What should these be? Is it definitely the case that I am required by law to sign a document giving a right of way and if I do sign it can I object to having this registered as a burden on my folio.
Many thanks
Rosemary
The short answer is that the land Registry forms follow a specific format and if you fail to follow this format it would affect the ability to register. The paragraph can be amended to restrict the right-of-way but not to the extent that it creates something other than a right-of-way – such as a licence.
Hi John,
14 years ago my father sold 12 acres of agricultural land to a property developer who had planned to build housing estates and bought a neighbours land behind ours. with the property bust the developer never built on the land and we bought back our 12 acres at a cheaper price than we sold. Anyways we just received the property registration today in the post, however when reading through it we saw that the neighbour now has an unspecified right of way through our land now which he never had before, is this allowed? we clearly specified to our solicitor and the auctioneer that we were not open to anyone having right of ways through the land. The neighbour doesn’t require it as he has access from his own side already and there are no roads in the field we bought as half is marshy land. is there anything we can so, as you can imagine we are extremely unhappy.
With thanks.
When you bought back the land part of your investigation of title should have disclosed any right-of-way on the folio. I would have to see the paperwork to make any further comment.
There are a number of articles on right of way on the site – if you want to search for rights of way using the search bar at the to or select the category : “Property Services.”
Hi John,
We live down a rural boreen where each house on the lane owns half of the lane along the boundary to our respective houses. Our neighbours are lovely and reasonable but one of them has a tenant who for a plethora of reasons they cannot remove but we would like to deny access over our part of the lane. The lane itself is more than 100 years old (visible in OS 1st Edition Mapping). When we purchased the house I do not believe a right of way had been registered, but it is accepted by all the residents. Can I deny access across our portfolio to my neighbour’s tenants? As I understand it I couldn’t deny access to the owners (nor would I want to – ?Right of Necessity). The tenants have been living there for three years and we bought this house in February of this year, unaware of the problems. If I was able to deny right of way across our portion of the land that would mean they would not have vehicular access but could access their property on foot across their landlords land.
I am assuming that this is a right of way by prescription – acquired over time. The right of way can be exercised by the neighbour, his servants or agents or tenants with his consent . So if the tenant has the consent of the owner and has a valid tenancy , you cannot obstruct his use of the right of way.
Thank you very much for the clarity.
Kind regards,
Liz
I appreciate you taking the time to post a Thanks.
my boss was needing IL Multiple Dwelling Registration recently and encountered a web service with an online forms library . If others need to fill out IL Multiple Dwelling Registration as well , here’s a
https://goo.gl/AzY8VEHi John,
I farm land accessed by an old public lane that was built by the land commission. The lane provides access to one other farm, although they have this closed (fenced off) at the end of the road and haven’t used it in years, instead accessing it from the other side of their farm.
The laneway is in a complete state of disrepair and largely overgrown. For years, the lane has been closed off with a gate at the beginning of our land and this has never been a probelem as nobody else uses it.
The council refuse to maintain it, and nobody else accesses it, can we therefore get it transferred in private ownership?
Andrew , the quick answer is “yes, anything is possible!”. If you can establish the owner and he/she/it is willing to transfer .If you email me more details we can have a look at it.
Thank you John, very detailed and useful radio clip. We are in the process of buying a property with a right of way issue with regard to lane way access to a rear garage. The laneway to the rear garage is owned by a sports club. They will not concede to a letter of comfort that they would NOT object to a future application for a registered ROW. Our solicitor maintains this is essential and states the bank may turn us down for a mortgage over the garage access matter because she will need to qualify title. The sports club solicitors will not communicate with my solicitor. The vendor’s solicitor will do no more and will only furnish us with a statement from the occupant that says she has used it for over 20 years. Would a letter from the sports club chairman acknowledging shared access arrangement with the house suffice for the mortgage lender? He has already acknowledged this shared access arrangement in an email to me. Should that email be sufficient for the mortgage lender?
This is probably not the forum for detailed legal advice . But here goes.
It is a case of doctors differ and patients * – I can only offer an opinion.
Where it is not compulsory (yet) to register ( I am assuming it is registered land) then it would not be unreasonable to expect the lender solicitor to accept the declaration of user from the Vendor exhibiting the letter from the sports club chairman.
Hello john,I have an issue where a man owns land which is surround by my land, the original right of way to his land is through my land but the original right of way hasn’t been used in over 115 years. Is it possible for him to re open this right of way?
It depends whether or not it is a documented right of way -if it has been formally created it may be possible to re-open it!
We are a group of residents – 42 houses. We have lived in the state for over 12 years – our houses look onto a derelict castle – which has had various owners since we bought the house.
When we bought our house we enquired as to the status of the Castle & the land surrounding it – we were advised by the agent that unless somebody bought it to restore the Castle that no other development could take place – fast forward 10 years.
2 years ago the land was sold – the new owner set up home on the site ( in a caravan) he advised that he was planning to restore the Castle – we had no issue with that. 2 years later ( 2 weeks ago) we noticed a planning application for the site which included 4 x 3 bedroom thatched cottages for the terminally ill / holiday homes – some barns and outhouses to house craft workers.In his planning submission he compared his plans to that of Bunratty Castle.
We reviewed the planing application which showed that the main entrances (2) for this development will now be through our estate by knocking through the stone wall which separates his site from our estate.
We arranged a meeting with him to discuss the plans – when we questioned the new entrances he told us he has a right of way – we checked this with the land registrar and he does have a right of way along the boundary wall – does a right of way allow him
1. to create 2 new entrances through our estate – which will in turn give him the access he needs to the site to start the re development and in the longterm all visitors / staff / workmen / deliveries etc will use these entrances
The quick answer is that a right of way is a right to access and if it is registered that map on the register should show you the way of which the right is exercisable. It would be unusual to have two entrances!
Hi John, my father lives in the country, when he built the house the toilets were outside and no hot water, showers etc. His neighbor asked could he build a shower room (shed) on my fathers land which was next to both houses but on my fathers land, he agreed and since then their house has been sold three times to their family members. They got a shower in their house and the shower room was not used any more, My father tried to sell his house but now there is a dispute that the neighbors say that the land where the shed is built on is there as they have used it for thirty plus years and they want it. The sale has fallen through a few times because of it. What do you think, Thank you
On a first look , I would have to say that the land is theirs – unless you can prove that it was only granted by agreement for a time! You will have to sell the house without this plot!
Hi John, just a quick question.
I bought a piece of land 20 years ago and it has an overgrown former road made redundant around 1850 going zig zag through it. I cleaned off the scrub and cleaned it up when I bought it 2005. I then received a solicitors letter saying I was interfering with a neighbours right of way. I said at the time he had no right of way there and it was left at that. Now I would like to level this former road up to field level and I have received another solicitors letter to say I cannot interfere with the right of way. I checked the land registry maps and there is no registered right of way. I own the land on both sides of this lane and I actually got the idea from this same neighbour who levelled up his end of it.
So my question is do I own the ground and can I level this lane way up to field level. I will be contesting his claim to this right of way as he’s not landlocked.
Thanks for reading.
Hi John,
I have used a boreen for many years almost exclusively though technically there are four other parties own it (according to the land registry maps) or have a right to it for access to their land. But part of it, shown on the land registry as registered to another farmer, is crumbling. Who is ultimately responsible for the maintenance?
If it falls to me as 97% user, (and that seems reasonable) would I have any right to enter the neighbours land to repair the defective bank?
Regards,
Charlie
If your question is can you repair it – the answer is yes. And I also would be of the view that you can enter the neighbour’s land to repair the bank. However, I would notify him and if he objects I would apply to the District Court to get an order to enter . This might avoid potential difficulty and technical trespass.
Hello John.
We access our house on a private road. Neighbour across the way says he owns the full road. Land direct maps indicate that his property is only registered to the middle of the road. Our property is only registered to the boundary wall. Neighbour’s on my side are unregistered. Our folio states that’s we have right of way over our neighbour(across the way), and his folio stayed the same. We are attempting to sell our house at the moment but we don’t have a registered right of way. The problem seems to be the unregistered land in front of mine and our next door neighbour’s. How can we get a right of way over land that is unregistered? How can we sort this? Is there an easy answer? All we want to do is get enough sorted to sell.
The easy answer is an affidavit that you have a right of way over the unregistered portion. If you email me the paperwork , I will have a more detailed look.
Hi John,
We live in the middle block, of a row of three blocks of 6 terraces. The block to the left have access to the front of their properties, the block to the right have vehicle access to the rear of the properties. We are one of three houses in the middle that don’t have parking. We would like to look into extending the access road at the rear so that we can all get on the road with a car and park. What would we need to do in relation to the existing neighbours regarding getting right of way access granted along the access road (across their property) to our properties?
Many thanks in advance
Tom
The quick answer : if they own the land rather than have a right of way, you would ask them to sign a document granting you a right of way ; if they have a right of way themselves, you would need to establish the owner , and get the right of way from that owner.
John,
I live in a lane owned by two farmers, one on each side. I got the owner who owns one side to agree to a right of way and that is fine – all now signed sealed and on the Land Registry map in yellow. The registered RoW goes right up the middle of the lane (from where the grass is growing up the middle to the hedgerow on one side only), and thus there is right of way for half the width of the lane (which is narrow anyway). The farmer at the other side who owns the opposite side of the lane, I predict, might be awkward about signing as we don’t get on. The question is, what happens if I go to sell? Do I really only have a right to access the left strip of the lane (too narrow for a car).
Thank you
Harriet, the short answer is that you should go about registering the right of way on the non-registered section before you sell. If you do not your sale may prove either problematic or affect price.
Hi John,
Hope you can help. We live on a country lane which comprises four houses. There are fields above the lane belonging to farmers who travel the lane to access their fields. Once or twice each year, the lane floods and tears up the lane making it impassable. We have been told that this is because the farmers don’t clear their drains. Another farmer has dug two large trenches in his fields which causes rainwater to flow in torrents down the lane. We rebuild the lane on our own to make it passable for our cars. We pay for the materials, and my husband and another neighbour make the lane accessible for us. It is time consuming, and we are getting older. When the lane is repaired, the farmers drive over it to access their land, but do not help to repair the lane. We feel that they are responsible for damages to the lane, but when we approach one farmer and ask him to clear his drains or reroute the flow of water he attributes blame to the other farmer and so on. We have been accommodating to everyone who access the lane, but feel taken advantage of. We are willing to contribute to any upkeep, but no longer feel that we should pay to restore a lane which has been damaged by a third party through neglect and/or rerouting of water What advice can you give?
A quick answer is that with rights come responsibilities – if you get enjoyment you should !!!
Hi John
We live in a Tce with a shared rear laneway, our deeds state that we are in ownership of half the lane and have a ROW over the entire lane while the Tce opposite have a ROW over half (their side). We have recently erected bollards marking parking spaces at our boundary and have received a solicitors letter stating that we are to remove them as we are blocking the ROW of the Tce opposite. They have not acquired a ROW by prescription as we have been parking there for a period of 23 years. Note that they do not need access to our ROW/land to access their property.
Your opinion would be appreciated.
As I understand it, you have a right of way and have erected bollards on the area covered by the right of way. This is not an act of a person who has a right of way.
Thank you for the reply
The bollards have been placed there to mark parking spaces and are wide enough to drive between, they are dividing the two side of the laneway and it it the opposite side that are opposing to them being placed there (on our own property and ROW. They are claiming a ROW over the entire laneway.
I hope this may have clarified my situation.
Any further comments would be appreciated.
Hey John.
We have 2 pieces of land owned in back of us. They both have a right of way to get to it that uses our driveway and goes in back with a grassy area being the road. Though as of right now its nothing but mud. Today we had the first piece of lands owners Son come in onto our property not that long ago around 8:30pm AST (Nova Scotia). And its dark out with his son coming in on a quad atv with 3 friends for nothing more then a joy ride. I’m wondering if (a) Their son’s & friends are allowed in back when the right away was made before they where born / old enough to drive an atv. (b) if there allowed to come and go at night without stopping to let us know there going in back as have had other people go in that where not allowed and had to put a stop to them (c) If there allowed in back when the roads are or will get muddy or muddier then it is, including our land. (d) if i can stop them least tell the land drys up as their fathers would not of gone in back tell it dried up enough or was winter or asked first.
Paul, apologies for the delay I missed your post . You mention around 8.30 pm AST (Novia Scotia) . Are you in Canada?
yea Canada
…. yes i live in Canada. Does that make a response take almost another month? even if i was not in Canada what would be the answer. Also would i be-able to put a gate up and give the 2 land owners keys to the locks so that less they have the key there not allowed in back to stop people that are NOT allowed in back?
Hello John,
We purchased a property eight years ago.
We share the single track access road with a utility company.
Our deeds contain a restrictive covenant which entitles us and our successors in title to a right of way with or without vehicles and for any purpose. In return we are obliged to pay 30% of any costs relating to maintenance, repair and upkeep of the road.
The utility company owns the banks either side of the access road.
One of the banks is adjacent to a field. The subtenant of this field has been using the bank to park cars and machinery without objection from the utility company. The subtenant has been using our road to gain access to the bank and the field.
The sub tenant of the field has erected substantial stables and has placed fencing across the field despite the fact that according to the deeds of the field it must always remain a private open space and despite two planning applications to build stables being refused.
The sub tenant advertises in the local paper under DIY livery and offers tea and coffee making facilities and claims that the owners are on site which they are not.
We believe that by the utility company allowing free use of their bank they are giving the subtenant an implied right to use our road and have made our objections known to the utility company on several occasions.
The utility company have now announced that they intend to issue a licence to the subtenant allowing her a legal right to use our access road and their bank. They want her to stop parking on the bank, restore it and the bank will be fenced. They also say that access to her field will be three quarters of the way up the road. This means that our access will inevitably be blocked by oncoming vehicles on occasion and there will be insufficient room for two vehicles to pass.
We do not know the terms of the licence that they intend to issue or if they will be asked to contribute to the costs of maintain the road.
They claim that the occupiers of the field have used the lane for in excess of 15 years and will by now have established a right of way. The subtenant has been there for 8 to 9 years.
We understood that in order to claim a right of access there has to have been regular use for twenty years and that the onus is on the beneficiary of the right to prove that this is the case.
Could you please tell me if the utility company has a right to issue this licence without our agreement or consultation.
Thank you
I am afraid that this is a bit complicated for a response by reply . If you wish to email us directly at [email protected] , we will try to respond. Some paper based information would also help – maps and copy deeds.
Hi John, some very interesting discussion on this page.
We have a lane at the side of our house which leads to fields behind our house, the lane also provides access to our property, however, it is very rarely used by us as we have a conventional entrance/driveway.
The right to use this lane-way isn’t currently register on our deeds, nor is there any formal agreement between us and the lane-way/fields owner, we are currently pondering whether to register this right of way before the 2021 deadline.
There are two main reasons why I’m hesitant. Firstly, it is of no great advantage to us since we so rarely use it and secondly, we are concerned we could potentially be partly liable for any accident that occurred on the lane-way. This concern arose after I saw you mention in the comments on this page that you advise it is good practice that the user, in addition to the owner of the right of way, take out insurance on the right of way. During the summer members of the public have occasion to use this lane-way due to events taking place in the fields behind our home, so this is of particular concern.
Can you tell us if we formally register our right of way would we have to take out additional insurance to complement our normal house insurance? Can you you also tell us what, if any, our insurance obligation would be if we don’t formally register the right of way?
Many thanks in advance,
Lorcan
A quick answer , without detailed information, would be to register the right of way if it might be of added value to your house. Your obligations are based on whether you are an occupier of the land. I would be inclined to include it in your insurance !
Hi John,
I bought a house just under 12 years ago and it is situated up a country lane. A “right of way and other such easements” was assigned to the the previous owners when they bought a site from a farmer but I recently discovered that my name was not assigned to that burden albeit I am the present owner of the Folio. The burden is highlighted on maps and registered under an instrument to the previous folio owners.
What do you suggest as my course of action ?
I would need to see the paperwork. But If you are a successor in title to the person who got the right of way , you should have the benefit of the burden.
Hello, not sure if this is the right post, but we are currently in the process of trying to purchase a house. (First time buyers) It is a terraced house, and originally there was a footpath going behind the back gardens of these houses. This footpath has since been removed, and the gardens doubled in size. (given by the council) although the official strip of land across the middle of the garden still officially owned by the council. Essentially the home owners own the garden in 2 parts, with a strip across the middle being the “right of way”.
Both neighbours left and right have since had this strip signed over by the council, so there is no access on either side, to the strip in the garden of the house we are trying to buy.
Our bank are refusing to proceed with giving a mortgage until this has been signed over and included in our purchase. This seems crazy to me, but my question here is advice on possibly how long this may take, or it is it even worth it, do we walk away? We are 3 weeks out from our proposed closing date and this just came about today. Any advice much appreciated. Wicklow County Council if that’s if any use.
Thank you
An interesting question or questions. Its really a decision on how much you want the house and whether the bank will keep your loan in place for the length of time it will take to purchase the strip. The neighbours or their solicitors should be able to give you an idea on the timeframe. The Bank should tell you if they are willing to keep the loan open.
Evening John,
I know somebody who owns a footpath which came with her house purchase but her neighbours have a private right of way on foot only to access their own properties. The deed mentions that she is responsible for the path including the cost. However, this seems unfair. Is there a way legally she can ask those neighbours using the path to pay or help in some way towards its upkeep?
If the Deed makes her responsible for the upkeep of the roadway unless she can get an agreement from the other users , then she is responsible.
Hi John,
My father has a back entrance into his house which he uses to park his car daily.
The laneway he uses is also into the neighbours back yard , they have approached him and said he has no longer a right of way on their lane, and have proceded to block his gateway with large flower pots, he has used this enterance since the late eightys , and the previous owner has also used it .
Where does he stand ?
Sounds like he may have a right of way by prescription (i.e. long use). He will need to go about registering the right of way and , if its contested, make a court application.
Hi John,
I live in a middle cottage of 3. Call me B. I have an access path around the back of the boundary line of cottage A. This access path is on my title deeds and i have to maintain it. It is not on Cottage A title deeds. Back in 1976 the access path for cottage B was down the side of cottage A and across there garden by the kitchen window. The owner of Cottage A didn’t like his privacy invaded so he moved it to the last 3ft of his garden. Owners have come and gone on cottage A and a brick and wooden fence has been erected and the access path is now behind the boundary line. Owner of Cottage A now wants to put a gate into access path near my garden end of the path so she can use the path. The path belongs to local farmer but transferred land to Wessex Water to put a pumping station back in 1978. If she puts the gate in her fence i will lose my enjoyment of my garden as she will be able to look into my property. Can she do this?
Racheall, as an Irish lawyer , I am afraid I cannot answer this one for you. The only comment I can make is that , in Ireland, the fact that it is on your deed will confirm the right . The second comment is that if the owner of Plot A owns the ground they are entitled to put a gate on it and use it – as long as they do not interfere with your right of access.
John,
My neighbour and myself have a shared laneway. We each own one side of the laneway. How long the process of establishing a recipricol right of way take?
Regards,
John
12 years continuous user is required under the Land and Conveyancing Law Reform Act 2009.
Hi John
My question concerns rights of way and whether they can be claimed by tenants. We rent an office in a commercial building. We are tenants under a long-term lease (25 years). Until recently we and other tenants in the building have accessed the main street running outside by crossing through the courtyard of an adjacent building and exiting via the adjacent building’s gate. This gate is also used for entering. This right of access over the adjacent building’s land was never questioned and indeed all staff were provided with a key by our landlord to use the gate. My understanding is that there must have been some agreement between the owner of our building and the owner of the other building which permitted this access. Recently there has been a dispute between the owners and the owner of the other building has effectively blocked access between the two buildings thereby cutting people off from entering and exiting through the gate to the main street. This way had been in use by us since 2008. All tenants in our building now have to use a second exit which opens onto a side street and is far less convenient from a commercial point of view for entering and exiting. Our lease does not provide for any explicit right of way over the land in question. My question is if a tenant can claim a prescribed right of way by virtue of having used this way since 2008 or if the right only extends to legal owners (i.e. our landlord). If our landlord enjoys an express or implied right of way over this land, can we as tenants seek to enforce a continuation of this access over the adjacent building’s path.
With kind regards
RC
A rather tricky one , a tenant generally cannot get a right of way akin to an owner – i.e. that landlord , only against the landlord and it usually requires 12 years unless in writing . In your case it seems that you may have being relying on the Landlord’s right of way which is now in dispute.
Hi John, We bought a house a few years ago which can only be accessed down a driveway. The house is over 50 years old and the former owner said he had mislaid the portion of the deeds showing he owned the driveway and they’ve never come to light. There is an apartment block behind our house and the owners/tenants use the driveway as a walkway to the complex which has a pedestrian gate opening onto a path through the drive, They keep the gate locked and open and close it as they come and go. The drive needs to be maintained and we don’t know whose responsibility this is. Also who is publicly liable – the apartment board of management, us or should it be the local county council as no one seems to know who owns it. There was nothing we could find in the registration of deeds office to indicate ownership.
Kind regards
A.
It is difficult to make any comment on this without establishing ownership .
Hi John,
we had a family farm which has a lane way leading up to it. After my Dad passed he left the house to my mum and the farm to my brother. There is access to the farm from a field leading on to the road and the lane was signed over with the house.The house is at the top of the lane and along side the sheds to the farm.My brother has now decided to sell the farm and has told us that the council has charge of the lane and the new owners will have right to pass by my mum’s door which is only feet away. On the deeds the house and lane are private and there is no mention of any right of way or charge on the lane we have asked the council to show proof and all we were told was that on there map they have a number beside the lane so that means it is in there charge but they will not say when and who put it in there charge. what can we do to stop any new owners using the lane.
Hard one to answer without seeing all the paperwork – the only comment I can make is that a private landowner would not usually have a private road in charge without some involvement with the local authority. I would be looking for concrete evidence from the local authority that the road is in charge and how this came to pass.
hi john.
I am in the process of buying a house built 2004 which is accessed via a private road, the house is the only house on this road, this road is used by several different farmers also to access their farm land, the house has no registered right of way, my questions are – would i have a right of way to my property, can i be denied access to the use of this tarmac road and would the owner of this road be able to stop me from registering a right of way ?.
many thanks. scott
As a general rule, if this private road has provided access for over 12 year and there are not other complicating factors , you should be able to register a right of way. However , this is something you should check out during the course of the purchase .
If I have a right of way , can I use it for anothe property that I bought beside the original one I bought.
Not as a rule, you would have to go back to the original grantor or their successor and ealarge the right of way.
Hello John.
If a right of way is established, can the right of way be constructed over. Example adjacent building extends out over the right of way on upper floor levels, either cantilever or supported by external structural columns upto the level of the extended floor plates. Is there a height limitation to which a right of way exists or does it run from ground to the moon?
Regards and Happy New Year.
Quick answer , as long as there is not interference with the exercise of the right of way.
Hi John, I with my husband bought my mother’s house which is one of five houses on the seafront, after she died, in 2004. All of the land these five houses were on was owned by the one owner (who is now deceased), with access by what I believe is ‘an easement of necessity’, as there is no other way to get from main road to these houses except by this lane. My mother had bought the house is 1975 and all the owners of these houses are in them longer than 12 years. We are looking to sell now but are coming up against problems with potential purchasers worried about the ROW. It does not appear on our folio, but the house and right of way was included in a paragraph in my mother’s deed of conveyance.
I’m looking for advice as to what the rule wheeldon v burrows which was replaced by rule 40(2) in the 2009 law re: easement of necessity requires?. What should we do, or what forms are necessary for us to register this easement of necessity so we can proceed with the sale of our house with the correct paperwork in place.
Secondly, once we do what is required, does this mean that the other four owners of the houses will benefit, or does it mean that it is just our house that will have the right attached or registered?
Obviously I will be telling the rest of the owners that they should look at sorting it out themselves before 2021, but the impetus to have this sorted is ours as we are selling.
A quick answer , without getting more detail, is that a right of way by necessity should suffice. But if you get a formal grant of right of way and register it, that will ease the sale process.
Hi John, Just a quick question – my sister is living in my parents house (dad is in a nursing home, mum passed away a number of years ago). There are 2 entrances to the property. They have been there since the property was built in 1973. My sister has closed off one of the entrances with a fence (not a gate, a fence) for safety/security reasons. When we eventually come to sell the property can we remove this fence and reinstate it as a 2nd entrance to the property? Someone mentioned to me that if the access is closed off and enough time has passed the access point can no longer be reopened & used/called an access point to the property. Two access points are on the original drawings of the property with the local county council. Many thanks, S
A quick reply -keep it open
Hi John,
My father allowed the public to access his lands as a scenic area, not in any official way but he never stopped anybody coming on to his lands. There is no issue with people needing to travel through his lands to get to any other destination. It is purely a nice place to walk for people who live in the town. This has been the case for 30 years. If he closes up the property is there any issue where people who have walked the lands for 30 years can claim a right of way?
There are two broad categories of rights of way – public and private . They both have different sets of criteria. A private right is by one adjacent landowner over another adjacent landowner – this does not appear to be what you are dealing with. A public right is a right to the public at large to enter on lands – this usually involves intention by the landowner to grant such a right and an exercise of such right by members of the public at will. This is not an easy right to establish. However, as with all things law , it depends on the facts and how those facts relate to the established legal principles.
Hi. We bought a property in 2004 and our title deeds show a right of way down the laneway which is maintained by the county council. The lane is in regular use by ourselves and at least 2 local farmers who own adjoining land. We are now selling the property and our buyer’s solicitor tells us that we only have right of way over one side of the single track road! I spoke to the PRA who told me it is standard practice to join titles in the centre of the road but this solicitor is insisting we need to register a right of way over the other side too. It seems a petty request, is it strictly necessary?
It does seem unnecessary, if it is maintained and you have a registered right of way.
Hello. We have outline planning permission to build a home on my in-laws farm which is located down a lane. When we approached banks, they requested a right of way on the lane. We checken the title on the folio and found that it doesn’t exist. However, we also found that the lane shows up on the OSI maps as a public road, but is not maintained by the local county council. There are 3 houses on the lane (including my in-laws) and we have been told that the other two parties would have to agree to grant right of way if we need it registered, but my question is if the road is in fact public, would an easement/right of way even be necessary?
Thank you!