Farm Ireland
Independent.ie

Wednesday 21 February 2018

Know your rights: How to establish a right of way

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

Theresa Murphy

Q I am writing to you on behalf of an elderly friend of mine regarding rights of way. There are three different right of ways going through an adjoining sports facility, one of which travels on through another farmer's yard. The right of ways are marked on the maps. As my friend is getting older he is anxious to register these rights of way as soon as possible in case anything might happen to him and his sons/heirs might have difficulty establishing the rights of way. We would appreciate some advice as how to proceed.

A Rights of Way are always a source of conversation and very often, a source of controversy between landowners in Ireland.

Simply put, 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 another. Rights of Way, are also known as easements. Easements include other rights for example, to cut turf, fishing rights etc.

ESTABLISHING A RIGHT OF WAY

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

Long Use

Many rights of way were created when a land owner used a piece of land or private road, which belongs to another person, over a long period of time, to get to his property.

The main test used by the court to establish the existence of a right of way used to be the continuous use of the land for 20 years or more. Since 2009, that requirement has decreased to 12 years of continuous use. This also applies to turbery, fishing and shooting rights.

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Agreement

Rights of way established by agreement generally arise where two land owners 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 to the agreement will include conditions in the agreement 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 on the exercise of the right - 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 appear on the folio of the lands affected.

It would seem that this has happened in the case outlined in our question.

In cases that relate to rights of way that were established before December 1, 2009, the claimant simply has to register the fact with the land registry (Property Registration Authority of Ireland - PRAI) before December 2021.

There is some doubt at this stage as to whether this time line will be extended further as many land owners have not taken any action on this.

In circumstances where the right of way is contested by the landowner, the issue of the right of way may have to be dealt with by a court order before December 2021 as the legislation currently stands.

If a right of way was not established by December 1, 2009, the claimant must show 12 years of continuous use from December 2009.

If you didn't establish 20 years of use prior to the 2009 deadline, the earliest you will be able to establish a right of way is 2021. At that stage, you will also be able register with the PRAI, although court proceedings will be necessary if the landowner contests the claim.

Benefits of registering

Failure to register a right of way will have implications for the sale of land. Banks are likely to look for a guarantee of title and having your right of way registered prior to sale is desirable.

Exceptions

Even if there is already a written agreement, the right of way still needs to be registered with the PRAI or registry of deeds. In this case there will be no need for a Court Order. It would seem that your friend should contact the PRAI about the rights of way and ensure that they are registered.

The new rules do not apply to landlocked land and public rights of way like old mass paths.

How to register

Under the new rules the person claiming the right of way over a neighbour's property may make an application to the PRAI on Form 5A, which is available on the PRAI website.

The PRAI will then notify the owner of the property concerned and if there is no objection raised by the owner, the right of way will be registered.

When it comes to preserving your right of way it is better for all to have it registered and in very clear terms, for example, what can the right of way be used for. There may well be no easy option but to engage with your neighbour and the relevant authorities.

Theresa Murphy is a barrister at law based in Galway. email: theresamurphy@lawlibrary.ie


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