Legal Advice – The Deadline To Register A Right Of Way Is Fast Approaching

Your options to formalise the right of way on your farm.

Dear Karen,

I have been using a right of way over my neighbour’s lands to access a part of my farmland for at least the past 20 years. 

My father and grandfather used it before that to access the same part of the farm. There was never any problem until I heard about this deadline to register. The man who owned the route of the right of way was a gentleman and over the years we always helped one another out if silage needed to be covered or whatever was needed to be done but this man passed away seven years ago and his son is the owner of the land now and he is not as neighbourly. 

I am conscious of the deadline for registering rights of way and I want to get a loan in time to build a new milking parlour and would like to get this registered. What would you advise?

‘My father and grandfather used the right of way before that to access the same part of the farm.’ File Picture

Dear Reader, 

Firstly, we would need to have a consultation to examine your title and your neighbour’s title and establish whether you in fact have established a prescriptive right. We would need to go through the detailed history of the right of way and confirm that the exercise of the right has been without force, without secrecy and without permission etc. 

If you have acquired a right of way by prescription the best advice would be to call to your neighbour in person and tell him you would like to register the right of way and formalise the position that exists on the ground and ask him would he be willing to sign a deed of right of way. If he says yes, normally the deed will be drafted by your solicitor and sent to him or his solicitor. An engineer/surveyor would prepare a Land Registry Compliant Map marking the route of the right of way. Your neighbour is entitled and should take advice before signing the deed and if he instructs a solicitor it is standard practice that you would discharge his reasonable legal expenses. Once the deed is signed by you and him it is then lodged in the Land Registry for registration.

If he does not agree it is best to contact your solicitor and your solicitor will then formally write to him explaining that you have acquired a prescriptive right of way and would like to register it and call on him to sign a deed of right of way. You will have to monitor his response, if any. If he is not engaging more letters may have to be sent. If he is saying that he is not willing to sign and outlining reasons then we would need to establish are these legitimate reasons which could affect your claim that you have established a prescriptive right of way. If you are still satisfied that you have established a prescriptive right of way and your neighbour is refusing to sign or a dispute has occurred in relation to the right of way, the options for you narrow.

There is a Land Registry application that is an option for some landowners to register their right of way. However, this is only particular to cases where there is no dispute. You have to have the requisite period of 20 years to consider this route. This is done by way of direct application to the Land Registry under Section 49A of the Registration of Title Act, 1964. A Form 68 is prepared and lodged in the Land Registry and is served on the owner of the lands.

The Land Registry adjudicates on the application. The difficulty with this is a claimant has no guarantee a landowner might not object and if they do generally the registration does not proceed. The claimant can still apply to Court for a declaration that the Right of Way exists.

However, given the fast-approaching deadline if a dispute is expected it would be more prudent to go straight to option three below and skip this option entirely.

The only other option available to you is to make an application to Court and if successful the Court will declare that the Right of Way exists, will identify the route and nature of the Right of Way and may order registration of the right as a burden on the Folio. Depending on the facts of the case, it may be necessary to issue proceedings before the 1st December 2021 if the claimant has 20 years user prior to the deadline. There is no requirement that the court action be dealt with, but legal proceedings must have been initiated by the deadline.

(Source – Irish Examiner – Farming – Karen Walsh – 25/08/2021)

Legal Advice – Opposing The Registration Of A Right Of Way

How a right of way comes into effect and the law surrounding it.

The deadline for the registration of rights of way on November 30 is fast approaching. A person may access their house or lands through a neighbour’s private roadway or lane. They do not own the private lane or roadway and they do not have a registered right of way but they believe they are entitled to use it and they may therefore seek to register this right of way in advance of the deadline or thereafter. What do you do if you wish to prevent someone from registering a right of way over your land?

In order to advise on this, it is essential to know how a right of way by prescription comes into being in the first place. Rights of way can come into existence without any agreement or consent and the use must be continuous and uninterrupted over another person’s land for a minimum period of 20 years (based on the current law). 

Rights of way can come into existence if there is continuous and uninterrupted use for a minimum period of 20 years. File Picture.

To establish such a right of way there must be dominant and servient lands. The dominant land is the land benefiting from the right of way and the servient lands are those over which the right of way exists. Many landowners are lodging applications under the Land Registry Section 49(a) procedure. This involves the applicant lodging an application for registration in the Land Registry. The applicant must swear an affidavit as to the facts showing proof of the acquisition of the right of way by prescription, evidencing the 20-year user period at least, that the exercise of the right has been without force, without secrecy and without permission. Once the application is received by the Land Registry and they have examined it, the Land Registry will send a notice to the owner of the servient lands. This gives the servient landowner the right to object to the registration sought.

The landowner is allowed a period of 21 days to lodge a valid legal objection. If the Land Registry are satisfied with the application and no objection is received within the said time frame, the Land Registry will proceed to register the right of way sought.

If a valid objection is made, the Land Registry may refuse the application or the application may be withdrawn. The only avenue available to the applicant then is to apply to the Courts to seek a declaration of the existence of their right of way. There are no set criteria as to what constitutes a valid legal objection. Grounds for challenging the application would be that the user has not acquired the said 20 years user, that the right of way has not been used as it is impassable or overgrown.

The person objecting could lodge an objection on the basis that the right of way has been abandoned. This is very much dependent on the facts of the case. There has been numerous case law where the Courts have repeatedly found that mere non-use is not proof of abandonment, there must be an intention to abandon and extinguish the right of way for the right of way to cease to exist.

In relation to the Section 49 application, there is no requirement that the servient landowner needs consent to the application. If no valid legal objection is made, the right of way will proceed to be registered as a burden on your folio. It is therefore up to the servient owner to lodge an objection within the requisite time frame to resist an application for the registration of a right of way over their land.

(Source – Irish Examiner – Farming – Karen Walsh – 15/09/2021)

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