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Monday 26 June 2017

Aisling Meehan: Choose the right path and register rights of way

Aisling Meehan

'I have found myself in a situation where I need to sell a 20ac block to keep the bank happy. It is a nice field that I bought from the neighbour nearly 30 years ago.

The only way of accessing it was up a lane that is still owned by the same neighbour, but it was never any problem as I had sorted that all out with him before I bought it.

But I found out from the auctioneer that I needed to get this right of way registered in order for it to be of any interest to a buyer.

When I approached the neighbour to get this sorted, I discovered that he's gone into a home and the power of attorney has passed to his nephew, who lives in town. He's not being agreeable at all and is looking for some sort of compensation."

This is typical of the scenarios I've come across over the years. The temptation to put off dealing with issues such as having a right of way registered is normal. But it is important to remember that it may have implications for land sales, particularly if the right of way has not been registered prior to the sale or ownership of the right of way changes hands.

Originally under the Land and Conveyancing Law Reform Act 2009, private rights of way acquired over time had to be registered with the Land Registry or the Registry of Deeds by November 30, 2012. The Act also required landowners to apply to the Circuit Court for an order confirming legal title to existing unregistered rights of way, without which, rights of way acquired by prescription would lapse.

While a series of amendments have resulted in a relaxation of the rules in certain scenarios, it is important not to get relaxed about the need to register rights of way.

SIMPLIFIED

A new simplified system that allows landowners to register uncontested rights of way with the Property Registration Authority (PRA), without the need for a court order, was contained in the Civil Law (Miscellaneous Provisions) Bill 2011. Detailed rules setting out the procedure for the registration of these rights of way was published by the PRA earlier this month.

The procedure is intended only for cases where there is no dispute between the parties. The rules stress that the procedure only applies to rights acquired by 'prescription', in other words the acquisition of rights by a user over a substantial period of time.

Rights of way can be acquired by other means, ranging from rights acquired by express grant or reservation, to the acquisition of rights implied by law, rights of way of necessity or to natural, public or customary rights. Different rules apply but your solicitor should be able to advise you as to which is most appropiate.

The application to register a right of way will depend on three things. Firstly, whether the applicant was claiming the right prior to December 1, 2009. Secondly, which of the three methods of acquiring rights by prescription is being claimed and lastly, whether the application is being contested.

Pre December 1, 2009

Traditionally, three methods of prescription were used, and no matter which method is claimed as the basis for establishing acquisition of rights, a claimant must show that they enjoyed the right, and the person over whose land the right of way exists joined in with the user or enjoyment.

The use and enjoyment must be for a period of at least 20 years, depending on which of the three methods of prescription are being claimed, and must be for a continuous period. A claim for rights acquired by prescription under the law prior to December 1, 2009, or in the process of being acquired, can be established up until November 30, 2021.

Already Completed User

Where a claimant had already completed the requisite user period under the old law by December 1, 2009, the legislation gives that claimant a choice. If they want to substantiate the claim on the basis of the old law, they must apply to the PRA for registration of an uncontested right of way or apply to the court for an order before December 1, 2021.

If they fail to take advantage of this period, they will have to rely on the new law, which states that the user will need to be able to show 12 years of continuous use from December 1, 2009.

1Nearly Completed User: Where a claimant has nearly completed the user period required under the old law by December 1, 2009, so that the period would be completed by December 1, 2021, a later application can be made. For example, if you can show that you used a path for 18 years up to January 1, 2009, you can apply after 20 years is completed on January 1, 2011.

2 Not completed by December 1, 2021: Where the user is unable to show or prove that 20 years of use will be completed by December 1, 2021, the claimant cannot rely on the old law and the new scheme applies. Thus a claim can be made under the new scheme once 12 years use from December 1, 2009, expires from 2021 onwards.

New System after December 1, 2021

After December 1, 2021, all claims must then be made under the new law on rights of way. It provides that a right of way shall be acquired by prescription only on registration of a court order, or via the procedure for an uncontested registration of rights that was outlined above.

In an action to establish or dispute the acquisition of the right of way, the court will only acknowledge a right of way if the person has used the right of way without interruption for at least 12 years up to that date. This increases to 30 years in the case of a right through State property, and 60 years in the case of a foreshore.

It is advisable to contact your solicitor who will advise you in relation to the circumstances of your specific claim.

Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor and tax consultant Aisling Meehan does not accept responsibility for errors. Aisling can be contacted at 061 368412

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