Farm Ireland
Independent.ie

Wednesday 13 December 2017

Legal advice: Does my neighbour have a right of way through my property?

Our solicitor Deirdre Flynn tackles this issue

Stock image.
Stock image.

My neighbour claims he has a right of way through my land. Could this be true?

I recently bought a piece of land which had been rented for many years and got little maintenance. I spent a lot of money fencing the boundaries as there were a number of badly fenced gaps and my neighbour has sheep. When I was recently my herding cattle in one of the fields, I found that some of the fencing had been cut.

I repaired it and two days later when I was in that field again one of my new neighbours got my attention and told me that I could not fence off his land, that he has a right of way through my field and that’s why he cut the fence.

The deeds of the land don’t show a right of way, but he says it’s a gentleman’s agreement and one he is prepared to challenge legally. His field does not have road frontage, and the quickest way to the road is through my field. However, his field is accessible through his other fields and the right of way is, I think, just a short cut.

He said that the previous owner allowed him to move sheep through this (my) field to load into a trailer, but I don’t want this happening.

Answer: So, your neighbour states he has a right of way through your field and it was a gentleman’s agreement. Yet, you confirm this is not registered on the deeds of your property.

I assume from the information in your query that this was not disclosed in the documents furnished when you purchased the property? You should check this with your solicitor as the previous owner was obliged to inform you of any rights of way affecting the property, registered or not. This is a specific question that arises in the sale of property.

You confirm that while your neighbour’s field has no road frontage, it is accessible through his other fields and the route through your field is just a shortcut.

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Unfortunately, your neighbour having other access points is irrelevant, if he has been moving his sheep through your field for 20 years without interruption. If your neighbour has been so using your field for 20 years without interruption thereby creating a right of way, then you cannot block same.

Every right of way is different and you should immediately consult your solicitor to get specific advice in relation to this. You should try to establish from the previous owner the history, if any, of this neighbour moving sheep through your field.

You state the land was rented for many years and you could also try to speak with that tenant and ascertain if that neighbour was moving his sheep through the field for the duration of that tenancy. Any break in the neighbour’s use of your field would be of benefit to you if you want to stop your neighbour from moving his sheep through your field.

If your neighbour asserts he has a right of way due to use of same for 20 years or more, it is incumbent upon him to register same in order to protect it. If he does not register same before November 30, 2021, then he will no longer be able to rely on that 20 year use.

Instead, he will have to prove that he used this right continuously and without interruption for 12 years from December 1, 2009 to November 30, 2021.

There are three ways in which a right of way can be registered: firstly, by way of deed of Grant of Right of Way which is where you would sign a document giving him a right of way; secondly, by way of his application to the Land Registry and the Land Registry would then serve notice on you that he has made such application and they would allow you the opportunity to object to it.

If you do object to it, then the Land Registry will reject your neighbour’s application and he would have to go to Court. The final option is for him to go directly to Court for an Order declaring that a right of way exists and that Order would then be registered in the Land Registry.

Rights of way are very complex and it is strongly advised that anyone who has the benefit of a right of way or anyone who has land over which a neighbour travels, consults their solicitor as soon as possible to protect their position.

Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, Cathedral View, Ardfert, Co. Kerry Tel: 066 7115695   Email: info@deirdreflynnsolicitors.ie

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.


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