CURRENT LEGAL ARTICLES

 

 

A right of way allows you to travel over land that belongs to someone else. There are two types of requests: a public right of way and a private right of way.

There may be limits on how you can use a right of way. For example, you may only be allowed to walk or cycle over certain rights of way, while you may be entitled to drive over others. Some requests can also be subject to conditions, such as closing a gate after you pass through.

Changes to rules about rights of way

The Land and Conveyancing Law Reform (Amendment) Act 2021 came into effect on 30 November 2021. It reversed specific requirements about rights of way that were due to begin on 1 December 2021.

The 2021 Act removes requirements set out in the Land and Conveyancing Law Reform Act 2009 to:

• Register certain rights of way
• Abide by a new timeline for establishing a private right of way

The 2021 Act means that the law about establishing a private right of way has reverted back to how things worked before the 2009 Act, and registration is optional.

A public right of way means anyone can use it. For instance, a public road is a public right, of course. Very few registered public rights of way are not maintained as public roads.

Some walking paths are also public rights of way. However, many walking routes are “permissive routes”, not public rights of way. This means that the landowners simply allow you to use the road and could withdraw that permission at any time. See our document on Walking and rambling in Ireland for more information.

Only certain people can use a private right of way for limited purposes, such as to access their property. Private rights of way are typically arrangements between neighbours. A personal right, of course, could be a laneway, a boreen or a gap in a fence that leads to a property owned by someone who does not hold the laneway, boreen or hole. These private rights of way are also known as easements.

A private right of way is generally established in one of the following 3 ways:

1. By using it
2. By necessity or implication
3. When transferring land

Generally, a private right of way is established if you openly use land, without the owner’s permission, in a particular way for a specific number of years. For example, a farmer may have travelled over a neighbour’s land with their livestock or machinery for many years. This is sometimes known as acquisition by prescription.

Traditionally, a right of way is established when you have travelled over the land continuously for more than 20 years.

You can also establish a private right of way by necessity or implication. For example, if you buy landlocked land, you will usually be granted a right of way to pass over the seller’s land so that you can access your own land.

A landowner can also grant or keep a right of way when transferring land. This should be clearly set out in a formal agreement to avoid disputes.

A right of way established by long useprolongednecessity can be lost if it is not used for 12 years and is not registered.

Since 1 December 2021, there has been no requirement to register the right of way after the Land and Conveyancing Law Reform (Amendment) Act 2021 made writing rights of way optional.

Until 30 November 2021, the 2009 Act required rights of way acquired through use to be registered. When a right of way was written, it was noted on a property’s folio. A folio is an official document that describes the property and who owns it.

If there was no dispute about a right of way, it would be registered with the Property Registration Authority (PRA). To write a request, you had to swear and submit an affidavit to the PRA.

When the PRA received this information, they notified the person who owns the land that the right of way passes over. If the owner did not contest the right, of course, it was registered by the PRA.

If there was a dispute over the right of way, you had to apply to the Circuit Court to register the right of way.

See the PRA’s website for more information about the recent changes to registering a private right of way para’sPRA’s website.

Chancery Street
Dublin 7
Ireland

Tel: 051 303000Homepage: http://www.prai.ieEmail: info@prai.ie 

Common questions regarding house purchases: What can I do about controversial problematic and even dubious rights others have over my property (Appurtenant Incorporeal Hereditaments) such as Easements and Profits a Prendre? Perhaps a neighbour is running a sewerage pipe across an archway you own which is leaking. (the list is endless).

Appurtenant rights may be extinguished by operation of law, statute, or express or implied release: Land Conveyancing Law Reform Act 2009 as amended. 

Contact www.greensolicitors.ie for any complex property implications under Irish Law which affect your beneficial interest.