The Cabinet has given the green light to scrap the upcoming 30 November deadline to register private rights of way.

Minister for Justice Heather Humphreys sought to remove the deadline on Tuesday morning at cabinet and will now bring forward a bill to be enacted before the November deadline.

“I know that the position that was due to apply after 30 November has been a cause of great concern for many,” Minister Humphreys said.

Court backlogs

“I have listened carefully to the concerns raised with me by stakeholders, including the Law Society and the Bar Council. I am satisfied that, if not addressed, this deadline was likely to lead to a large volume of unnecessary court cases to protect rights which have been enjoyed for generations, and to cause stress between neighbours, unnecessary legal costs, and added court backlogs.

“That is why I am acting quickly to clarify the legal uncertainty that has arisen and to put in place an appropriate solution.

“The Government has today approved my plans for a short amending Bill, to be enacted before the November deadline, which will address the main problems arising in the short-term. We will remove the major changes to the law on prescriptive easements and profits that were due to take effect on 1 December, thereby removing the imminent deadline.

“In what I am sure will be a welcome development for purchasers, this is also expected to greatly reduce current conveyancing delays and blockages,” she said.

To ensure that the legislation can be enacted before the 30 November deadline, the Minister intends to seek a waiver from pre-legislative scrutiny, and to seek early signature of the Bill by the President.

What does the change mean?

Had there been no change to the legislation and the 30 November deadline came to pass, if a right of way was not registered by this date, landowners would have to have shown continuous use of a right of way from 1 December 2009 to the date of registration after the 30 November deadline. This would have been regardless of whether the right of way was used for decades beforehand.

The law applicable to prescriptive easements and profits will largely be reverted to the judge-made law that applied before the 2009 Act.

It will still be possible to confirm a right of way, either by applying to a court or by registering it directly with the Property Registration Authority (PRA). But this will be optional, (as it was before the 2009 Act), rather than a mandatory requirement to avoid losing any rights acquired through long use.

The Department of Justice has said provision will also be made to ensure clarity on the situation of applications already made to court or to the PRA that have been lodged, but not decided, before these changes come into effect.

Public rights of way, and easements held under a written title deed, are not affected by the changes, the Department confirmed.

Common sense

In response, Senator Alice-Mary Higgins welcomed the rights of way announcement.

“Over the past year I have raised the 30 November deadline and the legal problems it will present with the Department of Justice and the Department of Housing, Local Government and Heritage on a number of occasions and I also proposed amendments and drafted a Bill to highlight this issue.

“While it is a pity it has been left to this late stage, I am happy common sense has prevailed and the Government are considering introducing legislation to address this issue before 30 November and the problems it would create,” she said.