A person’s right to travel across land owned by another has caused tension between neighbours for generations. This blog looks at the issues that need to be considered.
Known as a ‘right of way‘, it arises if one landowner needs to pass through another’s property to get to his own.
Rights of way are either general or limited. The mode of the passageway may be restricted to foot passage or may admit motor vehicles, the purpose of the user may be restricted to the exercise of agricultural property purposes, or for the sporting facility, or for carrying coal to a house, or allowing access to business premises.
A right of way could be a laneway, a boreen, or even a gap in a fence.
How does someone come to have a right of way?
A right of way can be created by either an agreement in writing or by use over a fixed period of time – called ‘long use’ or ‘prescription’.
The first method is simpler and basically means that two landowners sign a document to allow one of them to access a piece of property.
The second method by long use is the continuous use of the right of way for 20 years (soon to be 12). A person who wants to establish a right of way by this method must use the route without force, without secrecy and without the oral or written consent of the landowner.
Historically, there were other ways to prove a right of way. However, since the Land and Conveyancing Law Reform Act 2009, these will no longer be available. The Act also will shorten the time frame to get the right of way to 12 years.
How to know if a Right of Way exists on my land?
If the right of way was created by agreement, there should be a paper trail showing it in your title documents. These may be held by your solicitor or mortgage provider.
If the right of way, created either by agreement or long use is registered, then it can be seen by requesting a copy of your property’s folio from the Property Registration Authority.
Up until recently, rights of way developed by long use were generally not registered and so may exist unregistered.
I have an unregistered right of way. Should I register it?
Yes, and soon.
The reason for this is that under the changes brought in since 2009, a right of way can be registered (if the affected landowner does not object) without the need for court approval under the old rules until the 30th of November 2021.
As such, while an application is still needed at present to have a right of way registered, it may become more problematic after this 2021 date when a court order may also be needed.
The benefit of registering a right of way is that it is protected from becoming extinguished.
It will also be extremely helpful if you choose to sell your property in the future as a new purchaser will almost certainly want the right of way registered.
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Can I Lose A Right of Way By Not Using It?
They can be lost by the doctrine of abandonment or they can generally be extinguished on 12 years nonuser if not registered.
Usually, it will be up to the Court to decide but non-use of itself may not be enough. Abandonment requires some act or omission by the owner of the right of way accompanied by an intention to permanently relinquish the right.
There is a conspicuous reluctance of the courts to hold that a right is abandoned in the absence of unequivocal evidence.
Abandonment is not to be inferred from the fact alone that the person who owns right away has made use of an alternative facility.
What Should I Do To Make Sure That I Don’t Lost My Right Of Way?
If you access your property by using a right of way over another person’s land you should make sure that that right of way is registered with the Property Registration Authority (PRA).
To register a right of way, there is now a straightforward procedure where all parties agree.
People can now make an application to register it if it is not in dispute
It is important to note that until the deadline of the 30th of November 2021, you can apply under the old rules to the Property Registration Authority to register the Rights of Way.
If you wait until 2021 you could lose an opportunity and may run into unnecessary difficulties.
How to stop somebody getting a right of way
A right of way can only be registered if it is used without secrecy, without force, and without permission.
A letter of consent, given periodically to the person using your land can, therefore, act as a written permission and help prevent someone from establishing a right of way.
If you are worried about someone developing a right of way then you should speak to your solicitor about it for detailed advice.
Podcast: Rights of Way
Seek Advice & Take Action
If you are a landowner using a right of way you should look for advice to make sure that your long-established rights of way are not lost.
Title documents should be checked at the earliest opportunity to find out if your right of way needs to be registered – if you don’t do something in time you could lose a valuable asset.
If you have an agreement with the other owner or you have a written agreement you should register using the fast track system.
You should go about registered before the deadline for registration to avail of the older system of registration.
For further information contact us at [email protected] or telephone (052) 6124344
The material in this article is for general information only and is not legal or professional advice. While every care has been taken, we advise you to seek specific legal advice.