Rights of Way - A Legal Minefield

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Do you rely on a right of way to get into your home, farm or business? Do your pipes, sewers or cables cross someone else’s property?

If that is the case, make sure your right is secure and guaranteed.

The law regarding rights of way changed significantly on the 1st December, 2009 with the enactment of the Land and Conveyancing Law Reform Act. This new law affects people who use rights of way over other people’s properties, and could cause major problems for anyone relying on rights of way and other easements, if not addressed within the next ten years. If you cannot show in writing that you have a right of way you may have to go to court to establish your right or run the risk of it being lost.

Traditionally one could acquire rights of way and similar rights (easements) over a neighbour’s land by using the right of way continuously for over twenty years without force, without secrecy and without verbal or written consent. To give you an example, say someone purchased a site twenty years ago and built a house. Access is via a county lane (or boreen). It turns out that the lane is not a public road but is owned by a neighbour. The homeowner would have acquired a right of way after twenty years use of the lane. The neighbour could not block the access.

The act provided that if you have a right of way or other similar right (easement) which you have already acquired by lapse of time, in order to retain the right you must now either obtain a court order that the right exists, or where there is no dispute as to the existence of the right of way an application may be made to the Property Registration Authority by submitting an affidavit as to the circumstances giving rise to the right of way. If the Property Registration Authority is satisfied that a right of way exists, it will register the right of way on the folio. You also could obtain a written deed of the right of way from the landowner, but in many cases this will not be possible. The cut off point for applying for a court order is the 30th November, 2021. If a court order is not applied for the right of way will be lost, and the clock is reset. In other words, all rights are extinguished and in order to obtain the right again, one would have to accrue another 12 years of use.

It is essential for people to consult their solicitor if they have any concerns regarding rights that until now would be taken for granted. Failure to do so could potentially result in a house or land relying on a right way becoming worthless.

David Williams Solicitor