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RIGHTS OF WAY – WELCOME CHANGES BUT NOT ENOUGH

Q?. My house is at the end of a long laneway. I don’t own the laneway but have always understood that I had a right of way along the lane. I know that this has been a serious problem since the passing of the Land and Conveyancing Law Reform Act 2009. I heard that there have been some changes recently?

A Yes. The Land and Conveyancing Law Reform Act 2009 (which I will refer to as The new Act)is a complex piece of legislation passed on the 1st December 2009 which contained some very surprising and far reaching provisions relating to rights of way. It applied not only to Rights of Way, but also to other easements over property (for example the right to have a septic tank on a neighbour’s property or to discharge waste water through pipes located on a neighbour’s property).

A Right of way is a right of access and passage to one piece of land over a lane or other piece of ground owned by someone else.  Prior to the passing of the new Act there were a number of different methods by which a person could acquire such a right. It could be granted formally in writing by the Owner of the land over which access was required to the owner of land who needs the access. This usually happened where a person bought a site located down a laneway and the laneway gave access to the site and also to other lands adjoining the site. In these circumstances the seller would need to retain ownership of the laneway to access his remaining lands and the buyer of the site would need a right of access along the laneway so that he can get to his site.

Rights of Way granted formally in this manner and which have then been registered in the Land Registry were unaffected by The New Act.

However, the majority of rights of way in Ireland were not granted in writing but were acquired by long usage (the legal term is Prescription). Under the old rules the user of a right of way had to establish proof of 20 years continuous usage (longer if the land owner is the State). Once there was proof of at least 20 years of continuous use of a laneway, the person using the laneway could establish a Right of Way. If that person was selling his property he would furnish the buyer with a formal declaration of long usage-a sworn statement that the property being sold had been accessed over the other piece of ground for more than 20 years (reduced to 12 years by the New Act). Such a Declaration was generally accepted as sufficient evidence of the existence of the Right of Way.
With the passing of The New Act, the rules changed completely. To secure the Right of Way the registration in the Property Registration Authority of a written grant of right of way or a Court Order was needed.

The New Act led to severe difficulties for people who wished to sell or mortgage properties which has enjoyed these prescriptive rights. The Court route was too cumbersome, too time consuming and too expensive. The requirement to seek a written right of way led to conflicts between neighbours where no conflict had previously arisen. Many people were therefore unable to sell or raise finance on such properties. This result was never intended by those who drafted the new Act.

Some improvement has now been made following the passing The Civil Law (Miscellaneous provisions) Act 2011 which provided new procedures to enable a person who’s property has previously enjoyed these prescriptive rights to register them in the Property Registration Authority without the need to seek a formal written right of way and without the need to apply to Court for a formal Order.

The process involves the preparation and lodging of a very detailed application with the Property Registration Authority. Assuming that the application is correctly and comprehensively prepared then the Property Registration Authority will send notice to the owners of the lands over which the right of way is claimed and if they do not object then it will register the right sought.

It is critical to note that this new procedure is intended to be used only in cases where there is no dispute between the parties involved as to the entitlement of the Applicant to the easement. In the event of a genuine dispute then the Property Registration Authority will refuse registration and the Applicant will be left with no option but to take the expensive Court route. There is therefore still scope for the Government to make improvements to this system to avoid genuine and unintended hardship to hard pressed land owners.

The importance of sorting out informal Rights of Way now cannot be over stated. If you own property which relies on a Right of Way or other Right which is not yet registered in your favour in the Land Registry, you should immediately contact your Solicitor for advice before it is too late.

Val Stone is the managing partner of Stone Solicitors, a law firm that has been practicing from 14 North Main Street, Wexford, for the last
20 years. We have a team of 7 staff including 3 qualified Solicitors. Stone Solicitors can be contacted on 053 9146144 or by e-mail  at info@stonelaw.ie

Download PDF of Sunday Times Article regarding Lissadell House Right of Way

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