The changes could impact anyone with a right of way.

In a detailed submission to the Department of Justice in May, the Law Society highlighted “widespread concern” around the implications of changes to the way rights of ways are registered.

Up to December 1, 2009, rights of way acquired over long use would generally not be registered, but now — due to the introduction of the 2009 Act, rights of way created by long use must be registered before November 30, 2021.

While users do not lose their right of way if they do not register them before this date, they lose their opportunity to claim their right of way based on their long use. Users can only rely on the 12-year period from 2009.

The Law Society has said these provisions and others relating to rights of way have “needlessly” created problems for property owners and have “far-reaching implications”.

It is recommending a six-year extension to the deadline for registration and a further review of the laws.

 

Rights of way to homes

The Law Society said the most common problem the 2009 Act created for solicitors and their clients related to rights of way to homes.

It described elements of the act as particularly troublesome in rural areas, where many homes are accessed via roads or laneways that are not in the charge of the local authority.

Previous practice was to have the existence of the long user of a right of way verified by statutory declarations. Such proofs of user were universally accepted in the absence of a formal grant of right of way.

The Law Society believes that there was no desire among practitioners to change this long-established practice.

 

Rights of way to farms

In its submission, the Law Society said the second most common problem related to rights of way to farms. Many of these also are accessed via roads or laneways that are not in the charge of the local authority.

It said the new laws impact farmers when selling land but also, more importantly, when seeking loans to fund development and improvement of those farms.

The Law Society said that in adhering the 2009 Act, many solicitors acting for purchasers reasoned that best practice, when purchasing properties (either residences or farms) accessed by such rights of way, was to require the seller to procure its registration.

It said lenders then began to insist on registration.

The Law Society added that as a result of the uncertainty around clients losing rights, solicitors felt obliged to seek registration.

“For two years after commencement of the 2009 Act, the only way of procuring registration was to persuade the neighbour(s) to enter into a deed of grant of a right of way or to apply to the Circuit Court for a court order which could then be registered,” it explained.

Further, it said rural practitioners report that, in many cases, there are too many owners who would be required to join in a deed of grant of the easement.

“It is not unusual to have up to eight or nine owners of part of an access road.

“Also, on occasions, the owner of part of a strip of roadway is unknown. Where a number of family members inherit a property over which a right of way runs, some members may have emigrated and be difficult to trace.”

Others may refuse to engage or have an expectation of financial gain in return for their cooperation, according to the Law Society .

It said in some cases, an owner of a segment of a laneway, due to incapacity, infirmity or otherwise, may not be in a position to execute a grant of right of way, or a neighbour may not feel it appropriate to request that they do so.

The Law Society also highlighted that many other issues can unexpectedly arise when negotiating rights of way.

“While a right of way may be exercised for centuries without any difficulty, when it comes to negotiating a grant of a right of way, issues suddenly arise around matters such as: who will pay for future maintenance and repair; who will be responsible for public liability; what purposes it can be used for; and who can upgrade or resurface the access.”

Such issues are not easily resolved, it said.

 

Court

The Law Society said the alternative to negotiating a deed of grant of right of way is to take court proceedings to establish the right.

“Such proceedings require all owners of part of the access to be served with the proceedings and have the effect of pitting neighbour against neighbour, creating considerable anxiety and stress, including for elderly or vulnerable people,” it said.

“The costs of such actions cause further friction.”

Sales of properties have fallen through as a result of these issues while others have become protracted, according to the Law Society.

“Houses may not be unsaleable but perhaps are only saleable to a cash buyer who will insist on a steep discount,” it said.

“Solicitors report that substantial discounts are being sought and agreed in order to persuade purchasers to drop the requirement for registration of a right of way.”

The other problematic areas highlighted by the Law Society included the provisions regarding the incapacity of the landowner over which a right of way is claimed and rights of way relating to State land.

It said if an application to validate rights over State land is not lodged before December 1, 2021, no application can be made to validate such rights for another 18 years, even where someone had been exercising those rights for 50 years or more.

Explainer: Rights of way

What is a right of way?

Aright of way occurs if you own a piece of land where to get to it you must pass over a piece of land or roadway that is owned by another.

Rights of way are also known as easements. Easements include other rights for example, to cut turf, fishing rights etc.

Establishing a right of way

Rights of way are established either though ‘long use’ or created in an agreement/document.

■ Long use

Many rights of way were created when a land owner used a piece of land or private road belonging to another person over a long period of time, to get to his property.

The main test used by the court to establish the existence of a right of way used to be the continuous use of the land for 20 years or more.

Since 2009, that requirement has decreased to 12 years of continuous use.

This also applies to turbery, fishing and shooting rights.

■ Agreement

Rights of way established by agreement generally arise where two land-owners agree that a right of way should be granted to allow one of them to access a piece of property which is landlocked/otherwise difficult to access.

It often happens when a land holding is being broken up due to a sale, or if a farmer is gifting his farm to a child and retaining a small portion for himself.

Quite often if a right of way is being created in this way, conditions will be put in the agreement for the use of the right of way.

Benefits of registering

Failure to register a right of way will have implications for the sale of land. Banks are likely to look for a guarantee of title, and having your right of way registered prior to sale is desirable.

How to register

Under the new rules the person claiming the right of way over a neighbour’s property may make an application to the PRAI on Form 5A — available on the PRAI website.

The PRAI will then notify the owner of the property and if there is no objection raised by the owner, the right of way will be registered.

When it comes to preserving your right of way it is better for all to have it registered and in very clear terms — for example, what can the right of way be used for. There may well be no easy option but to engage with your neighbour and the relevant authorities.

Deirdre Flynn's case study: ‘Mr A will find it very hard to sell his house, despite his family’s use of the right of way for generations’ 

Here is a simple example of issues faced in practice in light of the changes introduced by the 2009 Act:

Mr A is selling his house, which is down a small roadway. He has always used the roadway to access his house. His parents and grandparents before him also used this roadway.

While preparing the contracts for sale, his solicitor discovers that this roadway is in fact not in the charge of the Local Authority but is private and owned by Mr B, who suffers from Alzheimers.

The purchaser is getting a loan to buy the house, and the requirement, under the 2009 Act, is that rights of way must be registered in the Property Registration Authority (PRAI).

To sell his house, Mr A has to get the owner of the road to sign a deed of grant of right of way to him, but he can’t as Mr B doesn’t have the mental capacity to sign it, and has not signed an enduring power of attorney allowing someone else to sign it on his behalf.

Mr A then either has to apply to the PRAI (under its S49A procedure) or issue proceedings to obtain a court order, both which take significant time.

Court proceedings are not ideal as Mr B does not have mental capacity to deal with them either.

Even if Mr A starts the S49A procedure (which has limitations), then he must continue to be the owner of the house until it completes.

The purchaser cannot wait as the letter of loan offer from the lending institution is going to expire, and if the lending institution (and buyer) refuse to accept the position regarding the roadway, then the sale will fall through.

Unless Mr A can find a cash buyer who is willing to take on the registration of the right of way themselves, then he will find it very difficult to sell his house, despite his family’s use of the right of way for generations without issue.

There are many people like Mr A who are not aware they only have a right of way to access their property.

Even if Mr B had the mental capacity to sign the document, it would bring up questions between Mr A and Mr B such as the responsibility for maintaining and insuring the road etc, particularly as Mr A is selling on and the buyer may be  unknown to Mr B.

The requirement to register a right of way draws people’s attention to the right of way and suddenly, what was once taken for granted, can  become a commodity.

People with a right of way of necessity — where they have only one access — do not technically come under the changes made by the 2009 Act, but unfortunately, in practice, rights of way of necessity are also required to be registered.

The procedure  is not suitable in every instance, so if the owner of the road will not/cannot sign the grant of right of way and S49A is not suitable, there is no choice but to instigate court proceedings to register the right of way.

Deirdre Flynn is a solicitor with a farming background, practising in Kerry. While every care is taken to ensure accuracy of information provided, Deirdre does not accept responsibility for errors or omissions in this article. Please consult your solicitor as soon as possible