Rights of Way and the Land & Conveyancing Law Reform Act, 2009
A Right of Way occurs where one landowner needs to go over a portion of another land owner’s property in order to perhaps access either another part of their landholding or perhaps to reach a public road or a street in the case of a village or town. Therefore, a Right of Way could be a laneway, a boreen or even just a designated strip in a field.
There are essentially two types of Rights of Way:
In respect of a registered Right of Way by agreement, this is straightforward and is an agreement by two parties whereby one party grants a Right of Way in favour of the other party and this is registered on the title of the party granting the Right of Way. The 2009 Act makes no change in respect of this type of Right of Way.
However, in the case of a Right of Way established by long use, prior to the 2009 Act, the test in establishing such a right was that the party claiming a Right of Way established by long use had to have a continued period of use of in excess of twenty years. Such a Right of Way was not registered on the title of the landowner over which the Right of Way was claimed.
An example of an unregistered Right of Way would be where say a farmer would have one field which might be separate to the rest of his holding and which could only be accessed by using a boreen which was in the ownership of an adjoining landowner but which the farmer claiming the right would have always used as the means of accessing this landlocked field from the rest of his holding. Such unregistered Rights of Way established by long use were very common throughout the country.
The 2009 Act changed this situation in two ways.
Firstly, it shortened the period of time that one had to establish the period of long use from twenty years to twelve years but it also stipulated that from the introduction of the 2009 Act, the party seeking to establish the Right of Way by long use had only a period of three years up to December 2012 to register this or else risk losing same.
This period was subsequently extended under an amendment introduced under the Civil Law (Miscellaneous Provisions) Act, 2011. This extended the time period by which one could apply to have this Right of Way registered up to the 30th of November, 2021.
Therefore, if you are a landowner that has the benefit of a Right of Way established by long use, there are now two methods by which you can achieve the registration of same. You can firstly make a Land Registry application on Affidavit setting out the nature of your claim and the Land Registry will notify the landowner over which the Right of Way is being claimed and if no objection is raised, the Land Registry will then proceed and register this Right of Way in your favour.
If however, the other party or landowner does object to your Land Registry application or if you are already aware before making a Land Registry application that the other party will not agree to same, you can seek an Order in the Circuit Court declaring the existence of the Right of Way. If you are successful in your Circuit Court application, then this Court Order is registered in the Land Registry thus safeguarding your Right of Way.
Equally, in the case where a Right of Way established by long use has not been used for a twelve year period, it is possible for the landowner over which this Right of Way exists to make an application to the Land Registry on Affidavit to have this Right of Way extinguished.
Accordingly, it is important for any landowner whose property may have the benefit of such an unregistered Right of Way established by long use to take steps to ensure that this Right of Way is protected by registering same in the manner outlined above. Please contact Kevin O’Donovan & Partners, Solicitors, telephone 027 51440 and we will be delighted to advise you on this and to complete the legal formalities on your behalf.