Rights of Way
Under the new Land and Conveyancing Act, which came into effect in December 2009, the rules in respect of rights of way have changed. This act was enacted by the last government to modernise Irish Land Law and gave a three-year grace period in a bid to give people the opportunity to take the necessary steps. This deadline for registration of easements (which includes rights of way) and profits a prendre was extended by Section 38 of the Civil Law (Miscellaneous Provisions) Act 2011 by substituting “within 12 years” for “within 3 years” in Section 38 (b) of the Land and Conveyancing Law Reform Act 2009. This means that applicants for registration have until 30th November 2021 to register (instead of 30thNovember 2012 as had been the case prior to the 2011 amending legislation).
Previous to this new act coming into force, an individual could acquire a right of way over land not in his ownership based on continuous long use with a minimum of 20 years use. Other conditions were also necessary.
Such examples include a farmer accessing his lands through a neighbour’s land or a home owner accessing the rear of a terraced house by means of a lane way, without the expressed permission of the land owner. Such rights did not require to be registered in either the Land Registry or Registry of Deeds.
Alternatively a right of way could be created by the right being specified in a written deed which could then be either registered in the Land Registry or Registry of Deeds. Such rights of way would subsequently be specified in the owner’s title. It is, however, important to note that all written deeds granting a right of way may not necessarily have been registered so it is advisable that one should check with their solicitor that such deed has in fact been registered.
Under the new Act, there have been dramatic changes. A farmer who has been using a right of way to access land all his life could find himself in a position of losing that right if it is not registered with the Land Registry or Registry of Deeds within the next 18 months, whether he acquired it by long use or by deed.
If there was no written or prescribed agreement, then this latest act stipulates that a right of way can now only be acquired on foot of a Court Order after the expiry of a 12-year period of continuous use. Once granted by the Court, the right of way can then be registered in the Land Registry or Registry of Deeds and a proper deed of right of way issued.
If, however, there is already a written agreement, the right of way still needs to be registered with the Land Registry or Registry of Deeds (if not already done so). In this case, there is no need for a Court Order.
In light of the above new legislative provisions, it is important that all individuals who may have a claim to a right of way over land must now apply for such a Court Order to protect their interests unless already registered.
Importantly, if you are a land user who has acquired the 20 year period of continuous use over a neighbour’s land, as of the 1 December 2009 you may apply to the Courts for a Court Order. However, such applications must be made to the Courts by the 30 November 2012. All such claims must be lodged in the Courts prior to that date.
It is also important to note that even if you have acquired a right of way by prescription or by an implied grant, but it has not been registered in the Land Registry or Registry of Deeds by that date, it will be extinguished after 12 years of continuous non use.
The new provisions also refer to the acquisition and maintenance of Profits-a-Prendre, such as right to light, turbery rights etc. Such rights (eg right to cut turf in a bog) are also part of the new Act, hence it is advisable to contact your solicitor about these as well.
What to do?
If you are an individual who believes you have a claim to a right of way which has been established through a period of long use, you should immediately contact Declan Noonan & Associates. We can take care of the entire mapping and registering process for you.
If on the other hand you have established a right of way but have not used it for some time, then start using it. It will be up to the Courts to decide if it is in fact a right of way (or not) based on how often you used it over the years.
Sorting out rights of ways can be time consuming as new maps may need to be drawn up and getting a Court Order can take some time to obtain. It is advisable to act on time.
In addition, these new legislative changes to the Land Act may have implications for land sales, particularly if the land on which the right of way exists, is put on the open market and the right of way has not been registered.
In summary, if you think you have claim to a right of way, it is advisable to contact Declan Noonan & Associates. Each situation will be case specific and will depend on various conditions and frequency of use.