Karen Walsh: Is your right of way registered in your favour?

Do you access your property through a right of way over someone else’s land?

Many of us enjoy rights of way without ever really thinking about them, for example, you may access your house or land through a neighbour’s private lane or roadway.

You do not own the private lane or roadway, it is not a public route maintained by the local authority, but you are entitled to use it, because you have a legal property right.

Where a right of way is expressly granted in a document, the route would usually be mapped, and the right of way would typically be registered as a burden on the title.

Often, a right of way would be used for a very long time, but would not be registered as a burden on the title or granted in a document.

The Land and Conveyancing Law Reform Act 2009 changed the law in relation to the length of time needed to establish a right of way, and provides for a new user period of 12 years. I will outline the position up to, and then after November 30, 2021.

Up to and including 30/11/2021 — a person claiming a right of way by long user will continue to claim a right of way accrued under the Prescription Acts and must establish he has used the right of way for a minimum period of 20 years.

This would include use before 1/12/2009 and up to the time of the claim. If the person brings a court case and succeeds, the court will declare the right of way exists, identify the route and nature of the way, and may order registration of the right as a burden on the folio (if the title is folio title, and not Registry of Deeds title).

From 1/12/2021 — a person no longer refers to the time period(s) under the Prescription Acts, but would claim under Section 35 of the 2009 Act, and establish a “relevant user period” which in the case of private land is a minimum period of user of 12 years, being “user as of right” without interruption immediately before the claim/commencement of legal action. The first claim would be from 1/12/2021 based on use commencing from or before 1/12/2009.

There was a lot of confusion and controversy about the 2009 Act, which resulted in the Civil Law (Miscellaneous Provisions) Act 2011, providing for a new procedure to claim a prescriptive right of way, particularly in a case where there is no dispute.

This is by application to the Land Registry directly, without the necessity of first having to obtain a court order. The right to apply to court still exists and a claimant does not have to lodge a Land Registry application first, but may often prefer to do so, in the hope of avoiding the expense of the court action, if there is no dispute.

The Land Registry application is served on the owner of the servient lands, and if he disputes the facts and registration does not proceed, the claimant can still apply to court for a declaration that the right of way exists.

The Land Registry adjudicates on these applications.

If the application is rejected, a claimant can appeal the decision or apply to court.

There is some good news, however. Where there is only one access point then the law remains unchanged. This is referred to a right of way by necessity. A right of way by necessity would occur, for instance, if there was only one access road to a house or land.

There are still many properties accessed by old country roads which are not taken in charge. The best advice to a farmer who is accessing all or part of his or her property by a roadway or track where use is not declared by court order, registered as a burden or set out in a document of grant, is to get legal advice about his or her particular case.

The issues arising can vary depending on the nature and history of the route, the number of other landowners involved, their title, how the use of the way commenced, and the transactions which the farmer may enter into in the future.

If the farmer gets legal advice now, he (or his successors in title) may be able to avoid delay in the future. Even if there is no dispute, the presence of a right of way claimed on foot of long user could delay a mortgage, sale or gift of all or part of property for the benefit of which the prescriptive right of way is claimed.

Do not lose your right of way.

If you own property which relies on a right of way or other right which is not yet registered in your favour in the Land Registry, you should contact your solicitor for advice before it is too late.


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