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“My neighbour’s son wants to increase their dairy herd. They don’t have enough land around the dairy to do this, so they want to use an outfarm. One of my fields lies between their dairy and the outfarm. My neighbour is the very best neighbour you could have – honest, decent and hard working and the young lad is the same. When he approached me to use my field to cross the cows, I panicked and refused. I’m afraid that my land will be devalued by doing this. He is more than willing to rent/lease the walk way or whatever needs to be done, but I don’t know how to approach it. I’d genuinely like to help him but need to know that he and I will be protected legally. Could you advise me please?”
You were correct in being concerned about the impact on the value of your property, but a solution can be found to create a win-win situation whereby the farmer can walk his cows across your land while at the same time not devaluing your property. There are a couple of ways you could accommodate him either through a right of way, lease or a licence and I will go down through the pros and cons of each option.
Rights of Way
Rights of Way (RoW) affect most farms across Ireland. Most landowners do not want a right of way established over their lands as it has the potential to devalue their lands, especially if there is conflict as to the extent and use of the right of way. The majority of them are not registered on a person’s title. However there is a requirement that they be registered on a person’s title by 30 November 2021 and we have seen an influx in relation to these registrations in recent months. They can come into existence without any contract or agreement and may arise from continuous and uninterrupted use of a RoW over another’s lands.
In order to lay claim to a RoW, he would need to be using the RoW without force, without secrecy and without permission for at least 12 years if he started using the RoW since 1 December 2009. For those that started using the RoW before 1 December 2009, a 20-year user period applies. So if you give him permission to use the way, it can never amount to a RoW, which he could register against your property. The important thing then is to document that you have given him permission and the conditions attached to that permission.
Lease
You could lease him the land over which he wishes to walk his cows. However if you lease this land to him, you will not be able to use it as he has a right to “exclusive possession” under a lease. The other aspect of the lease is that it would be for a fixed term unless both of you agree to shorten that term during the lease. Naturally enough he would want to have a term as long as possible to give him security that he knows he will be able to use it for a long period in order to plan in terms of cow numbers, cashflow etc. You should also be able to claim income tax relief on any rent under that lease if the lease is for five years or more and you are not related to the person leasing the land.
Licence
A licence is similar to a lease, but would not necessarily give him “exclusive possession”, which means that you could use it too. You would have to agree how you would use it in advance eg you could not have animals on it, the same time as he would be walking animals through the land as there can be no mixing of herds. The other benefit of a licence is that you can normally terminate it at short notice so that if your circumstances changed such that you wanted to sell that field or if you died, your successors could end the arrangement and thereby free up the land if they so wanted.
However the farmer might want a minimum term to give him security that he was going to have the use of the road, especially if he was going to put in a new road at his own expense, which can be provided for under the licence.
Conclusion
All in all, a licence might be the best option. While Irish landowners typically do not like to sell land, you should give it consideration, especially if you are 55 years of age or over as you could claim Retirement Relief and have no tax to pay on the sale.
Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie
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