COLUMN: All you need to know about rights of way across the Premier County

John Lynch writing in this week's Nationalist

Tipperary Tipperary Tipperary

John Lynch of Lynch Solicitors

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. There is, however, some doubt about when this will become law.

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 that 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.
Rights of Way established by long use
Many rights of way were created when a landowner used a piece of land, lane or private road, which belongs to another person, over a long period of time, to get to his property. The main test to prove a right of way was the continuous use of the land for 20 years or more.
Up to now, a right of way created by long and continuous use would generally not be registered. An example of a person who benefits from such a right of way is 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 Document
This situation arises when two landowners get together and agree that a right of way should or needs to be granted to allow one of them to access a piece of property that is landlocked. This might happen in a situation where a large landholding is being broken upon a sale or if a farmer is gifting his farm to a child and retaining a small portion for himself. Quite often, if a right of way is being created by deed or agreement, the parties to the agreement will include conditions in the agreement for the use of the right of way, e.g. if the right of way is over a private roadway, it might stipulate that a gate is to be kept locked or there might be a restriction on the exercise of the right of way – e.g. it is for pedestrians only. Once the right of way is agreed and recorded in writing, it is usually registered.

How long does it take to establish a Right of Way?
The Land Law and Conveyancing Act 2009 changed the old way of establishing a right of way, which was that you had to establish use over 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 they can prove that they had used the right of way for 12 years. 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.

Registering a right of way 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 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 right of way 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.

Making 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, the best way to safeguard that right of way is to register with the Property Registration Authority (PRA). If there is no objection by the adjoining owner, this is a relatively straightforward process. If there is a dispute and you want to establish the right of way, a court order will be needed. The deadline no longer applies. On September 21, 2021, the Minister for Justice, Heather Humphreys, obtained Cabinet approval to amend the right of way provisions in the Land and Conveyancing Law Reform Act 2009.
This amendment will remove the upcoming deadline introducing the new rules. On November 30, 2021. Minister Humphreys said: “I know that the position that was due to apply after the November 30 has been a cause of great concern for many. I have listened carefully to the concerns raised with me by stakeholders, including the Law Society and the Bar Council. I am satisfied that, if not addressed, this deadline was likely to lead to a large volume of unnecessary court cases to protect rights that have been enjoyed for generations and to cause stress between neighbours, unnecessary legal costs, and added court backlogs.”

What does this mean?
This means that the old rules for establishing a right of way will remain in force and the new rules will not come into play on November 30 of this year. It will still be possible to register a right of way, either by application to the PRA or a Court Application; however, this will be optional and you will not lose your right of way acquired by long use if not registered by November 30.

Seek Advice
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 in the future.
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.

Buy the e-paper of the Donegal Democrat, Donegal People's Press, Donegal Post and Inish Times here for instant access to Donegal's premier news titles.

Keep up with the latest news from Donegal with our daily newsletter featuring the most important stories of the day delivered to your inbox every evening at 5pm.