RIGHTS OF WAY
WHAT IS A RIGHT OF WAY?
A right of way is the right to pass over a piece of land that you do not own to gain access to land you do own. You do not own the land but you have an entitlement to use it for the purpose of accessing your own property.
HOW DO I GET A RIGHT OF WAY?
Traditionally there were a number of ways a right of way could be established.
The owner of the land over which the right of way is required and the person who needs the right of way agree to a right of way being granted. The agreement is made formally in writing, the route of the right of way is mapped and the right of way is registered in the Land Registry ( now called The Property Registration Authority) as a burden on the folio of the landowner granting the right of way.
More commonly, a landowner gets a right of way through long use. If a landowner has been using a right of way for 20 years continuously, he or she can establish a right of way. If that landowner was selling his or her property he or she would give the purchaser a sworn declaration of the fact that he/she had been using the right of way for 20 years continuously and in most cases that would be acceptable.
HAVE THERE BEEN ANY CHANGES TO THIS POSITION?
Yes. The Land and Conveyancing Law Reform Act 2009 ( The Act) changed the position. The Act provided that
rights of way, (and indeed other easements) may only be acquired by long use if the party claiming long use gets a court order to this effect and the right of way is then registered with the Property Registration Authority. The Act also reduced the time for long use from 20 years to 12 years ( from the date of the commencement of the act). Furthermore, to claim the right of way by long use, the application to Court had to be made before 30th November 2012 or the party claiming the right of way could lose the right of way.
HOW HAS THIS WORKED OUT?
Not so good. Clearly it was not possible to establish 12 years use from 2009 to 2012. So, a new piece of legislation was brought in - the Civil Law (Miscellaneous Provisions) Act 2011. This extended the deadline to 30th November 2021.
WHAT SHOULD I DO IF I HAVE A RIGHT OF WAY BY LONG USE?
Take steps now, before the 30th November 2021 deadline to register your right of way. If you wait until after the 2021 deadline you will lose the opportunity to register the right of way and it will then become necessary to apply to Court to register the Right of Way and you may run into unnecessary difficulty and expense.
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