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Wednesday 14 November 2018

Legal advice: Don’t let right of way issues be a no-go area

Rights of way can be controversial
Rights of way can be controversial

Theresa Murphy

Our resident solicitor tackles this sensitive issue

I am a landowner in a farming community and have some concerns about a right of way. A parcel of a property which adjoins my land is accessed through a roadway on my land.

In relation to the right of way, the wording on our deeds is: ‘The property is subject to the right to pass the right of way on foot and with horses or other animals with or without carts and other conveyances (journeys) and for other purposes’.

Over the winter the landowner who uses the right of way for access, without our permission, used his tractor to take silage etc, to his animals and damaged the access.

Does he have this right? The original gate width was 9ft.

Rights of way are a contentious issue in rural areas and can be the quickest way to fall out with a neighbour if not approached with caution and tolerance.

To simply explain what a right of way is, a right of way occurs if you own a piece of land and in order to get to it you must pass over a piece of land or roadway which is owned by someone else.

Rights of way are also known as easements. Easements include other rights — for example, to cut turf, fishing rights etc.

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Rights of way are established in two ways, either though ‘long use’ or created in an agreement/document.

In this case, it seems that the right of way was created through the inclusion of the details of the right of way on the deeds of the land/folio.

Right of Way by Agreement

Rights of way established by agreement generally arise where two landowners get together and agree that a right of way should be granted to allow one of them to access a piece of property which is landlocked/otherwise difficult to access.

It often happens when a land holding is being broken up due to a sale, or if a farmer is gifting his farm to a child and retaining a small portion for himself.

Quite often if a right of way is being created by deed or agreement, the parties involved will include conditions for the use of the right of way.

For example, if the right of way is over a private roadway, it might stipulate that a gate is to be kept locked, or there might be a restriction — for example, it may be for pedestrians only.

Once the right of way is agreed and recorded in writing, it is usually registered. It will then appear on the folio of the lands affected.

When creating a right of way by agreement, both parties should take great care to set out in detail the specifics of the right of way — including, for example, what type of vehicles can pass on it, if a gate must be kept locked etc.

The passage of time and changes in technology have resulted in a situation where rights of way created by agreement do not specifically provide for new machinery.

The court is most likely to look at the purpose for which the right of way was created when deciding whether the use of the access route is appropriate.

For example, if the right of way is for access to agricultural land, and there is no other means of access and the width of the route was set at 9ft, it might reasonably be presumed that agricultural vehicles — such as tractors — which have replaced the horse and cart can pass over the right of way, if it does not need a roadway wider than 9ft.

It is reasonable to presume that a tractor would be allowed to pass over a right of way which was originally created for use by a horse and cart, unless there is good reason why this would have a seriously negative effect on the landowner upon whose land the access route is located.

There is no ‘one size fits all’ answer as each case is different in its circumstances.

Damage to the right of way

Once a right of way has been established, there is an obligation on any parties using it to ensure that it is not damaged by the use/misuse of the access route.

If damage is caused to the route through use — such as carrying silage — there is an obligation to restore it to its former condition.

As the user of the right of way cannot damage the right of way, neither can the land owner block the use of the right of way for any reason.

Right of way through long use

Prior to 2009, a right of way was obtained by 20 years of continuous use. Since ’09, that has decreased to 12 years. 

You should begin the process of registering the right of way through the PRAI (land registry).

Any unregistered rights of way should be registered before December 2021.

Disputes

Where the use of another person’s land is at stake, tolerance is required on both sides.

In many cases these agreements were reached by previous generations and bind those who inherit or buy land.

If you feel that your land is being misused by a party using a right of way or that a right of way is being denied, you should seek professional advice; time is an important factor in these type of disputes.

This article is intended as a general guide only, you should seek professional advice in relation to your individual circumstances.

Theresa Murphy is a barrister based in Ardrahan, Co Galway


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