LEGAL COLUMN: Dealing with rights of way and ancillary rights and how to avail of them

With rights of way and other similar types of easements, you need additional (‘ancillary’) rights to be able to avail of them - for example, if you have an easement to a well or septic tank, you need to be able to access it to repair or clean it.

The general rule is that an easement has such ancillary rights as are reasonably necessary to exercise it.

Rights of way are the most common easement that generate discussion about ancillary rights.

With rights of way, there are two parties involved - the user landowner who used the right of way (called the dominant owner) and the owner landowner who owns the land over which the right of way passes (called the servient owner).

Right versus obligation

There are two elements to an ancillary right – the obligation and the right.

The most common ancillary right is the right to repair.

There is no difficulty about repairs where there is a written Grant. The Grant will usually specify the rights and obligations on repairing and the contributions to the cost involved.

If there is no Grant or if the Grant is silent on ancillary rights, the law will imply obligations and rights.

LANDOWNER

The owner landowner has a right to, but no obligation to, repair. However, if the owner landowner does some works on the right of way and those works may need to be maintained or repaired so as not to interfere with the use of the right of way (e.g. putting in speed ramps or a cattle grid).

The user landowner has a right, but no obligation, to enter, clean and repair, for example, to clear bushes or briars.

Where there is a grant for all purposes with or without vehicles, the user landowner has a right to improve in order to put the right of way in a suitable condition for full enjoyment of the right of way.

For easements based on long use, the history of the user will determine what repairs the user landowner can undertake - for example, put down a road surface where there existed a level stonelike surface (metalled surface). However, if the repairs interfere with the owner landowner’s land, damages may be payable - e.g. interference with drainage on the servient lands.

OBLIGATION

A general rule, unless specified in a Grant, the dominant owner does not have an obligation to repair a right of way unless there is an excessive user.

If the user landowner does damage the passageway (e.g. damage by heavy machinery), which impacts on the owner landowner’s use of his land, making it useless or dangerous, he is obliged to repair or re-instate.