Legal advice for farmers: It may be time to go about preserving your right of way

Legal advice for farmers: It may be time to go about preserving your right of way

If you have land that benefits from rights over another property, then it may be time for you to take action to preserve these rights.

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.

If you have land that benefits from rights over another property in this way, then it may be time for you to take action to preserve these rights.

The Land and Conveyancing Law Reform Act 2009, as amended, (“2009 Act”) attempted to simplify the law regarding acquiring rights of way by prescription.

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.

Up to and including November 30, 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.

From December, 1 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 December 1, 2021, based on use commencing from or before 1/12/2009.

Transition period

In order to protect claimants who had either acquired the relevant user period before the 2009 Act was introduced, or who were in the course of acquiring it, transitional measures were introduced.

The 2009 Act provided for a 12-year transition period, from its commencement, in which claims can be brought under the old regime and user periods prior to November 30, 2021.

Consequences for failure to register before November 30, 2021

The main consequence is that under the 2009 Act, the user period only begins accruing from the commencement of the Act, being December 1, 2009, even where an additional user period is claimed before that date.

Therefore, should you fail to register a right of way prior to November 30, 2021, any user period before December 1, 2009 will not be considered.

In addition, you will have to meet the criteria set down by the 2009 Act, rather than relying on the previous law.

Advice

The first piece of advice is if you are not sure if your right of way is registered, check it out.

Call to your solicitor.

Arrange for your solicitor to check your title deeds.

Do not assume it is registered.

If it is not registered, act promptly.

These applications can take time.

There are three ways you can register your right of way 

  • enter into a deed of right of way with the owner or owners of the road.
  •  lodge an application in the Land Registry.
  •  court application.

Get advice on the best route for you to take in relation to your particular circumstances.

Rights of way are very complex, particularly if ownership of the roadway, path, or other route of right of way is divided between a number of different owners, or if it is not known who owns the route.

It is strongly advised that any person who enjoys the benefit of a right of way should register that right, well in advance of the November 30, 2021 deadline.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law. Email: info@walshandpartners.ie Web: www.walshandpartners.ie

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