A Right of Way (RoW) is the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another and it affects most farms across Ireland. The majority of them are not registered on a person’s title.
The law in relation to RoW changed in 2009, which required private rights of way to be registered on a person’s legal title by 30 November 2012. Following intense lobbying, this date was extended to 30 November 2021. That being said, farmers should not see this as the cut-off date.
Importance of registration
The rules for claiming the BPS, GLAS and the Organic Farming Scheme payments provides that there must be independent and suitable access for animals and/or machinery for the farming enterprise being conducted. Independent access means access by public or private roadway, or by a defined RoW.If land is being used as security for a loan, the financial institution providing the loan will require the RoW to be registered to ensure that they have good title to the land in the event of them having to enforce their security. A farmer and their predecessors might have been using a RoW for generations without any issue, but if the land is sold to a third party or inherited by a younger generation, they may raise issues with the use of the RoW. Consequently, it is advisable to get the RoW registered if you are on good terms with the current owner. Registering RoW
By far the simplest method of registering a RoW is agreeing a deed of RoW to be signed by both parties. Normally, the solicitor who is acting for the person who uses the RoW would draft the deed. This would be sent to the solicitor for the person who owns the land, over which the RoW exists, who would review it and approve it with any necessary amendments and then both farmers would sign it. It would then be lodged to the Property Registration Authority (PRA) to be registered.
Application to the PRA using Section 49A procedure
A new simplified system, introduced in 2011, allows landowners to register uncontested RoW directly with the PRA. The procedure is intended only for cases where there is no dispute between the parties. The application to register an uncontested RoW is made by the person claiming to use it.The applicant must swear an affidavit to ground the claim, ie to show how and against whom he/she claims they have established a RoW. This affidavit can be drafted by the solicitor for the applicant.The applicant must also arrange for a Land Registry-compliant map to be lodged with the affidavit, with the RoW highlighted and identified on the map, generally in yellow. The fee to be lodged with the application to the PRA is €130.Notice will then be served by the PRA on all interested parties, including the landowner over whose land the RoW is claimed.The period allowed for reply/objection is usually 21 days, with an additional five days allowed for service of notice. In the absence of the application being contested, registration may proceed. Where there are competing claims of fact in respect of a claimed RoW, the PRA may refuse the application and issue an order refusing registration. This can then be appealed to court.Court order
Naturally this would be the method of last resort. If the parties disagree about the existence or the extent of a RoW and cannot resolve their differences, proceedings are normally issued in the Circuit Court to determine the matter. Judges are very reluctant to rule on the existence or extent of a right of way and normally encourage the parties to resolve the issue between themselves.
Mediation is often used as a tool to achieve a resolution, whereby an independent mediator agreed to be appointed by both parties works with both parties to reach an agreed consensus. Both parties would normally bear their own costs if the issue is resolved. Otherwise if the matter is resolved in court, the person that loses the case typically has to pay both his/her own costs and the other persons costs.
Ending a Right of Way
Assuming a RoW has been established, it is difficult to extinguish this right.
Extinguishment: The most common method of barring a RoW will be under the Land and Conveyancing Law Reform Act 2009. This allows unregistered RoWs which are not exercised for 12 years, to be automatically extinguished. However, where the RoW has been registered, the right is protected despite not having been used for 12 years.Abandonment: A RoW may also be extinguished through abandonment. However, to succeed the person claiming abandonment must prove that the owner of the right has not used the RoW and has demonstrated a firm intention never again to use it, eg a substantial change in the nature and use of the land to which the RoW benefitted. If the user of the RoW is using alternative access to the land which has the benefit of the RoW, this does not necessarily mean that the original RoW has been abandoned. Neither does the fact that the RoW has become overgrown or has been closed by a locked gate. However, if there was evidence of a permanent closure of an RoW by the user, this might be sufficient to prove that the right is extinguished.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.
A Right of Way (RoW) is the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another and it affects most farms across Ireland. The majority of them are not registered on a person’s title.
The law in relation to RoW changed in 2009, which required private rights of way to be registered on a person’s legal title by 30 November 2012. Following intense lobbying, this date was extended to 30 November 2021. That being said, farmers should not see this as the cut-off date.
Importance of registration
The rules for claiming the BPS, GLAS and the Organic Farming Scheme payments provides that there must be independent and suitable access for animals and/or machinery for the farming enterprise being conducted. Independent access means access by public or private roadway, or by a defined RoW.If land is being used as security for a loan, the financial institution providing the loan will require the RoW to be registered to ensure that they have good title to the land in the event of them having to enforce their security. A farmer and their predecessors might have been using a RoW for generations without any issue, but if the land is sold to a third party or inherited by a younger generation, they may raise issues with the use of the RoW. Consequently, it is advisable to get the RoW registered if you are on good terms with the current owner. Registering RoW
By far the simplest method of registering a RoW is agreeing a deed of RoW to be signed by both parties. Normally, the solicitor who is acting for the person who uses the RoW would draft the deed. This would be sent to the solicitor for the person who owns the land, over which the RoW exists, who would review it and approve it with any necessary amendments and then both farmers would sign it. It would then be lodged to the Property Registration Authority (PRA) to be registered.
Application to the PRA using Section 49A procedure
A new simplified system, introduced in 2011, allows landowners to register uncontested RoW directly with the PRA. The procedure is intended only for cases where there is no dispute between the parties. The application to register an uncontested RoW is made by the person claiming to use it.The applicant must swear an affidavit to ground the claim, ie to show how and against whom he/she claims they have established a RoW. This affidavit can be drafted by the solicitor for the applicant.The applicant must also arrange for a Land Registry-compliant map to be lodged with the affidavit, with the RoW highlighted and identified on the map, generally in yellow. The fee to be lodged with the application to the PRA is €130.Notice will then be served by the PRA on all interested parties, including the landowner over whose land the RoW is claimed.The period allowed for reply/objection is usually 21 days, with an additional five days allowed for service of notice. In the absence of the application being contested, registration may proceed. Where there are competing claims of fact in respect of a claimed RoW, the PRA may refuse the application and issue an order refusing registration. This can then be appealed to court.Court order
Naturally this would be the method of last resort. If the parties disagree about the existence or the extent of a RoW and cannot resolve their differences, proceedings are normally issued in the Circuit Court to determine the matter. Judges are very reluctant to rule on the existence or extent of a right of way and normally encourage the parties to resolve the issue between themselves.
Mediation is often used as a tool to achieve a resolution, whereby an independent mediator agreed to be appointed by both parties works with both parties to reach an agreed consensus. Both parties would normally bear their own costs if the issue is resolved. Otherwise if the matter is resolved in court, the person that loses the case typically has to pay both his/her own costs and the other persons costs.
Ending a Right of Way
Assuming a RoW has been established, it is difficult to extinguish this right.
Extinguishment: The most common method of barring a RoW will be under the Land and Conveyancing Law Reform Act 2009. This allows unregistered RoWs which are not exercised for 12 years, to be automatically extinguished. However, where the RoW has been registered, the right is protected despite not having been used for 12 years.Abandonment: A RoW may also be extinguished through abandonment. However, to succeed the person claiming abandonment must prove that the owner of the right has not used the RoW and has demonstrated a firm intention never again to use it, eg a substantial change in the nature and use of the land to which the RoW benefitted. If the user of the RoW is using alternative access to the land which has the benefit of the RoW, this does not necessarily mean that the original RoW has been abandoned. Neither does the fact that the RoW has become overgrown or has been closed by a locked gate. However, if there was evidence of a permanent closure of an RoW by the user, this might be sufficient to prove that the right is extinguished.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.
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