New Act may extinguish existing Rights of Way?

The introduction of the Land and Conveyancing Law Reform Act 2009 might have passed most people by without them noticing. The new law is a long overdue overhaul and consolidation of much of the previous existing legislation. While I’m not suggesting that everyone need to go out and buy a copy, (its not great bed time reading anyway) there are a few important changes that could have a real impact on your property.
Books could be written about the effect of the changes but for the purpose of this article we are confining ourselves to the effect the new legislation will have on rights of way over land and easements in general.   An easement is basically some right, such as a right of way,  over another person’s land. It is a contentious area of law at the best of times and it looks likely that the next few years will see increased litigation in this area due to the effects of the recent changes.
A right of way can be defined as a right for someone to travel over someone else’s private property.   The right is “attached” to the property of the person who has the right.  This means that if that person sells his property the right of way automatically passes with the property to the purchaser. Many of us enjoy rights of way without ever really thinking about them, e.g. accessing  your land or house via a neighbour’s roadway or laneway. You don’t own the roadway but you are entitled to use it. Many business owners will need to consider service entrances via laneways that are owned by other parties. Farmers also whose land is accessed thought their neighbour’s land should be aware of the effects of the new law.   Losing your right of way could have quite disastrous consequences.
Rights of way often come into existence without any contract or agreement between the parties.  In some cases you may not even know who owns the road or land that you are traversing. You and your family before you might have been using the road for years if not generations and as a result have what is called a prescriptive right of way. Under the old law a prescriptive right could be acquired by 20 years use without force, without secrecy and without the oral or written consent of the servient land owner i.e. the land owner whose property  is being crossed.  These prescriptive rights of way are rarely registered in the Land Registry.   Someone inspecting the title deeds would not know that such a right exists.
This is all very interesting you might think but how does it affect your average land owner?
Effectively the new act means that people with unregistered rights of way and other easements have from the 1st of December 2009 until the 1st of December 2012 to register their rights in the Land Registry. If they don’t then their right may be extinguished and the time period for re-acquiring that right legally starts from the 1st of December 2009 with previous use being considered irrelevant.  The result could be the complete loss of the right of way.
This is quite an important issue and may require you to consult your solicitor. If you have an unregistered right of way then registering it may simply require drawing up an agreement between you and the owner of the land over which the right of way runs.
Unfortunately there is the possibility that if a land owner is asked to confirm a right of way they may refuse, thus necessitating a Court Order. To obtain such a Court Order a person claiming a right of way will be required to prove in Court that they had been using the road or path  in question  for the relevant period of time without force, without secrecy and without the oral or written consent of the servient land owner.
The good news is that where there is only one access point then the law remains unchanged. This is referred to as a right of way of necessity. A right of way of necessity would occur for instance if there was only one access road to a house. The law will not allow the road owner to deny the owner of the property access to their land, if that is the only access available. However in many cases it is unlikely that the person claiming right of way will be able to claim the right as a necessity as there will be other means of accessing the land.
If you are using a right of way to gain access to your property you should ascertain if this right of way is registered in the Land Registry.   This is essential  where you may be thinking of selling your property.   Since the passing of the Act solicitors have to advise purchasers not to rely on unregistered rights but to insist that vendors register these rights either by the agreement of the servient land owner  or by obtaining Court Order.
It is important to point out that rights of way are not the only rights that may be extinguished, other easements such as the right to light, cut turf, drainage and other utilities will also be extinguished. Borrowing wisdom from an old saying, “ A stitch in time saves nine” I suggest that if you think you have a right over someone else’s land then be sure to consult your solicitor and  find out how the new Land and Conveyancing Law Reform Act 2009 affects you.