A reader’s query about a dispute with a neighbour highlights the importance of taking action ahead of this year’s deadline for rights of way registration, writes Deirdre Flynn
A number of years ago I was approached by my neighbour’s son to formalise a right of way they had across my land to a field and cottage they owned. An informal arrangement had been there for as long as I remember and there were never any issues.
However, when my neighbour decided to transfer the farm to his son, he (the son) told me that the right of way should be registered as there was a change in the law regarding this set to come into force soon. I didn’t see an issue as the right of way was always there as far as I was concerned so I agreed to it being registered.
Unfortunately, it has now turned into a bit of a disaster for me. My neighbour’s son has converted the cottage into an Airbnb and has guests in it constantly which is no surprise as it’s a scenic area.
However, the guests are often from the city and I have had several instances of dogs worrying my sheep as well as parties till all hours of the night. When I agreed to register the right of way I never knew it could be used in this manner. Is there anything I can do?
Rights of way have been a common issue over the past 12 years and will be even more topical this year. In 2009, when the Land Law and Conveyancing Act was enacted, 2021 seemed distant. But it has now arrived and brings with it the deadline before which rights of way must be registered.
Before we delve into the query, let’s define ‘right of way’. In its simplest form, it is the right of a landowner to pass back and forth over the land of his/her neighbour.
Some rights of way have restrictions and others do not, but each right of way depends on its own circumstances. Rights of way cannot be sold separately. They must be passed on with the land whenever the land is transferred to a new owner.
A right of way can be established by written agreement between two landowners or by long use. For example, many rights of way were created when a landowner used a piece of land or private road, belonging to another person, continuously and without interruption, throughout generations to get to his/her property.
Up to December 1, 2009, rights of way acquired over long use like this would generally not be registered, but now - due to the introduction of the Land and Conveyancing Law Reform Act 2009 which commenced on December 1, 2009 – rights of way created by long use must be registered before November 30, 2021.
You do not lose your right of way if you do not register them before this date, but rather you lose your opportunity to claim your right of way based on your long use of same.
You can only then rely on the 12-year-period from December 1, 2009 to November 30, 2021, provided you have been using the right of way continuously and without interruption during that period.
There are three ways in which a right of way can be registered:
In your query, you say you agreed to a right of way being registered over your lands to access this field and cottage.
Therefore, you must have signed a Deed of Grant of Right of Way. Now, your neighbour’s son has turned the cottage into an Airbnb and the guests are using this right of way.
You say you never intended the right of way to be used in this manner. Therefore it is important that you inspect the Deed of Grant that you signed as that will specifically set out what type of right of way you granted and was subsequently registered on your lands.
As set out above, rights of ways can be limited and subject to the conditions, and if this applies in your case, then it will be set out in the Deed.
Where a person has a right of way for a particular purpose, and then uses that right of way for a different purpose, it could be excessive user of that right and unlawful.
Take, for example, a situation where someone has been using a right of way solely for agricultural purposes and a Deed of Grant is signed and registered giving the right for this agricultural purpose only. If the person who has the agricultural right of way then decides to build a house/houses on their lands, and uses the agricultural right of way to access same, then that would be excessive use, as the right is not being used for agricultural purposes.
In order to establish if there is excessive use in your scenario, the Deed would have to be examined, along with the intention of the parties when the deed was made. The history of the right of way’s use could also be looked at.
There is no quick answer to this query as the specific circumstances of the right of way must be examined, but you must immediately attend your solicitor and have him/her examine the signed Deed of Grant and advise you further from there.
Dogs and livestock
You also mention that dogs are worrying your sheep and, in this regard,, the Control of Dogs Act 1986 sets out that if a dog is worrying livestock, then the owner or any other person in charge of a dog shall be guilty of an offence.
If a dog worries your sheep, you should immediately contact the dog owner or person in charge of the dog, and if the dog injures or kills your livestock, then you could make a claim against the dog owner once you can prove that the dog caused the injury.
You should also speak with your neighbour’s son about his guests bringing dogs to the property and request that dogs are not permitted in the house to prevent future incidences.
You should also speak with him about the parties until all hours of the night and ask that he talk to his guests to prevent that from happening again.
If he refuses or the parties persist, then you will have to take an alternative course of action, but it is always prudent to attempt to resolve the matter directly with your neighbour first.
You have a lot to discuss with your neighbour’s son and you should consult with your solicitor regarding all matters before doing so, to obtain specific advices.
Deirdre Flynn is from a farming background and practices as a solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee, Co. Kerry.
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 circumstances at the earliest possible time.