Rights of way time bomb
That’s the advice of solicitors in regard to The Land and Conveyancing Law Reform Act of 2009, which came into effect in December 2009, and which could cause considerable problems for right of way owners, if not addressed within a two-year time frame.
The new act consolidates previous existing legislation, but where it will affect farmers and householders in particular, (and also commercial property owners), is in the area of easements.
Easements, which includes rights of way, way leaves, rights to light, to cut turf, drainage and other utilities, will be extinguished under the new act, unless registered within the timeframe allowed.
And while these rights had been virtually inextinguishable in the past, under the new legislation, ancient rights of way could be lost, unless formally registered.
Very often, easements have come about over time and without the express permission of the landowner. These same rights of way are also rarely included in property deeds, and are considered rights of way by prescription — that is, they were acquired by 20 years use without force, without secrecy, and without oral or written consent of the servient landowner.
In other words, the land you pass over to reach a field, a house or a shop, while not belonging to you, but which has been used by you and yours for generation, will now have to be formally registered to remain in your use. On paper, it’s a fairly straightforward affair.
The act requires that the easement has been in continuous use for 12 years previous to December 1, 2009, and must be registered before November 30, 2012.
The registration involves a court order confirming the existence of the easement, followed by its registration with the Property Registration Authority (PRA, formerly the Land Registry), or the Registry of Deeds.
And here is where the matter could become tricky. If the landowner denies the claim to the right of way, then the matter will have to be contested, and the right of way proven in court, before an order is made.
In cases with only one access point, however, the law remains unchanged, and landowners are not allowed to challenge what are called rights of way of necessity. They will, however, have to be registered, and this is especially important when it comes to selling on a property.
Solicitors now have to advise against the purchase of unregistered easements on a property. Therefore, it’s vital that access to property or lands over a prescriptive right of way is registered as soon as possible, otherwise the right can be extinguished.
Also, under the new rules, an easement can automatically be extinguished if it has not been used for a continuous period of 12 years — which means that previously unassailable rights of way, that have been allowed to lapse, are in danger too, if not registered by the deadline.
There are a number of elements in this act that could have major changes for landowners and property owners. For landowners, it could allow the opportunity to get rid of long-standing rights that have been in abeyance, and for property owners, it means they now have to take action fast to prevent alternative access to their house or land being closed.
A visit to a solicitor is a must for anyone who relies on someone else’s land to get to their own.
