A right of way arises if you own a piece of land and in order to get to it you must pass over a piece of land or roadway which is owned by someone else. Rights of Way, also known as easements make it easier for one landowner to get across someone’s land to get to his/her own land.
Are there different types of Rights of Way?
- Rights of Way established by long use
- Rights of Way created by a Document
Rights of Way established by long use: Many rights of way were created when a land owner used a piece of land, lane or private road, which belongs to another person, over a long period of time, to get to his property. The main test to prove the existence of a right of way was the continuous use of the land for twenty years or more. Up to now a right of way created by long and continuous use would generally not be registered.
Rights of Way created by Agreement: This situation arises when two land owners get together and agree that a right of way should or needs to be granted to allow one of them to access a piece of property which is landlocked. This happens in a situation where a large land holding is being broken up on 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 by deed or agreement the parties to the agreement will include conditions in the agreement for the use of the right of way e.g. if the right of way is over a private roadway it might stipulate that a gate is to be kept locked or there might be a restriction on the exercise of the right of way – e.g. it is for pedestrians only. Once the right of way is agreed and recorded in writing it is usually registered.
How long does it take to establish a Right of Way?
Before the 2009 Act, you had to prove a certain amount of right; in the Courts’ view a minimum of 20 years. The 2009 Act simplifies the area of rights of way. A person can claim a right of way if s/he can prove that s/he had possession for 12 years. The person who is establishing the right of way must be a user as of right; i.e. you have to prove permission and consent by the owner of the laneway, etc. to the person who wishes to use it to access his own property. The law helps out by presuming consent where you show continuous use for more than 12 years.
What should I do to make sure I don’t lose my Right of Way?
If you access your property by using a right of way over another person’s land it is prudent to ensure that the right of way is registered with the Property Registration Authority (PRA). The Civil Law (Miscellaneous Provisions) Act 2011 extends the deadline for registration until 30th November 2021.
Seek Advice and Take Action:It is important to realise that for the next 7 years one can apply to the PRA to register Rights of Way. If you wait until 2021 you could lose an opportunity and run into unnecessary difficulty. If you are a land owner using a right of way you should make sure that your long established rights of way are not lost. Title documents should be checked at the earliest opportunity to find out if your right of way needs to be registered – if you don’t do something in time you could lose a valuable asset.
