Legal advice: Neighbouring farmers leaving our road in an awful state. Can I use a right away to stop them?

Deirdre Flynn

Q.We live at the end of a 'right of way' and are the only house on this right of way. Ourselves and three other farming families have the right of way on the road. However most of the rest of the land, except our own, is rented to other farmers. Between ourselves and the three other families, we spent a lot of money to get the road resurfaced and up to proper standards.

The issue I have is that the farmers who are renting the land have no ties to the area and continually leave the road in such a state as to render it impossible for anyone else to use it. It is difficult at times to walk on it, cycle on it or bring a buggy on it. I continually end up cleaning after these people in order to try and leave some of the road in a safe and usable state. I have asked the offending people if they could make some stab at cleaning up after themselves but it falls on deaf ears.

Where do we stand on this issue? Have we any way of tackling this?

A. Thank you for your query. Unfortunately, the area of rights of way is complex to say the least and you are right in that your initial course of action was to attempt to resolve the matter amicably with the farmers who are dirtying the road.

You state that you live at the end of the right of way, but you do not say whether, a) you own the road over which others have the right of way, or b) someone else owns the road and you were granted or have acquired a right of way. You say in your query that you and three other families spent a lot of money to get the road resurfaced and up to proper standards. This suggests one of two things: 1) All four of you own parts of the road over which there is a right of way, or 2) You have been granted a right of way from the registered owner of the roadway and there are obligations on you in respect of the maintenance of that road.

At the outset, it must be clearly identified who actually owns the roadway over which there is a right of way. If you do not own it and were granted a right of way, then you should check the document that was signed by you and the owner of the roadway as that may contain certain covenants and/or obligations you and the landowner must abide by in relation to the maintenance of the road. Your solicitor will be able to get a copy of this document for you and explain the contents of same.

You say there are farmers renting out the land along this roadway and that it is those lessee farmers who continually leave the road in such a state rendering it impossible for anyone else to use it. If you do not own the roadway, I assume that the owner of the road (if he/she owns the road), has a lease agreement with those farmers who are renting it from him/her and in which case, such agreements often set out obligations on a lessee farmer that they must abide by for the duration of the lease.

It may now be prudent to approach the owner of the road and perhaps, he or she could speak to the offending farmers about their use of the road and remind them of their obligations, if any, under the lease.

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You do not say whether the right of way is for all purposes or for agricultural purposes only but, depending on the type of right of way, then if you own the road and the right of way is being used by the offending people in excess of the terms in which the right was granted to the landowner who is renting the farm to these people, then you may be able to tackle the matter from that viewpoint.

A person is not entitled to obstruct or interfere with another person's use of a right of way and if they use a right of way in such a manner as to cause damage to the road, then they have an obligation to maintain same.

A further course of action open to you, particularly if you own the road, is an action grounded in nuisance. In assessing whether a nuisance has been suffered, the courts adopt an objective test stating that an owner of land is entitled to, as against a neighbour, the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person. Following this objective test, it would be difficult, for example, for you to bring a successful action against a farming neighbour for the offence of odours during slurry spreading on nearby fields as a reasonable, objective person would state that putting up with such offensive smells from time to time is part and parcel of living in the countryside.

To determine whether the interference is unreasonable from an objective perspective, the court will consider factors such as the locality, the standard of comfort that a person living in the area where the property is situated might reasonably expect, the duration, frequency or extent of the interference or the time of day. You should meet with your solicitor and give him or her more detailed information in relation to the state in which the offending tenants leave the roadway and he or she will be able to advise you further in relation to nuisance.

You can see from the above that there are a number of factors to consider before you decide on any one course of action to tackle this issue but you should get confirmation as to who exactly owns the road, get a copy of the Deed granting the right of way to you and approach the owner of the roadway to see if he or she would speak with the tenant farmers and get a copy of the lease agreement that that owner has with the tenant farmers to ascertain if there are any obligations on the tenant farmers in same.

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.

 

Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, 4 Ivy Terrace, Tralee, Co Kerry

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