NECESSITY TO ISSUE APPLICATIONS FOR RIGHTS OF WAY
A new Act was introduced in Ireland some time ago entitled the Land and Conveyancing Law Reform Act, 2009. This piece of legislation brought in many changes to the law relating to the acquisition of a legal term that is know as “Easements” obtained via long usage. The most common easement found in reality are rights of way or wayleaves. A right of way is the entitlement to continue to pass and repass over land that you do not own. A wayleave is the right to ongoing access to lands that you do not own to maintain a service that runs through your own lands. Prior to the aforementioned 2009 Act, a right of way could be granted either formally in writing by the owner of land to which you pass over and these may or may not be registered on the title. The second method of acquiring a right of way was if the access over that piece of land had been established by “long usage”.
Previously, in order to establish a right of way, you must prove that you had used same for in excess of 20 years (this may longer if the land in question was state owned). If you were therefore selling property that you owned and you were advertising same as having the benefit of a right of way, it was sufficient for you to swear a formal statutory declaration declaring this. Following the enactment of the Land and Conveyancing Law Reform Act, 2009, it became necessary to register such rights in the Property Registration Authority. The Act also changed the rules as to how to apply for Easements obtained by long usage. The “sting in the tail” was that any time built up showing long usage prior to the 2009 Act will, on the 1st of December, 2011 be extinguished and it is only time of which the Easement has been used since the 2009 Act that will be taken into account following any application post the 31st of November, 2021.
It is therefore important to use these last remaining months to “put in order” any rights of way that has been established and that you are relying on prior to the end of November, 2021. The application is made in the manner of a form submitted to the Property Registration Authority along with the necessary proofs. This can be a long and drawn out application however it is well worth the time to consider same especially if the right of way is necessary to access your property or indeed if the lands which you are traversing are state owned. Should you have any queries in this regard please contact the Property Solicitors within this firm.