Rights of way and easements-time is running out with 30th November 2021 deadline looming

  • by

Time is fast running out for the registration of rights of way arising from prescription-that is, by reason of long use.

As the law stands you have up to 30th November 2021 to register your prescriptive easement with the Property Registration Authority. This is the section 49A procedure and is intended for the situation where there is no dispute between landowners as to the right of way.

The legal profession is extremely concerned about this, and the Law Society has made representations to government to have the deadline extended again. (It was extended by 9 years from 31st December 2012, an extension necessitated by the changes brought about by the Land and Conveyancing Law Reform Act 2009.)

Problems in relation to easements

Since the enactment of the Land and Conveyancing Law Reform Act 2009 which brought about changes regarding prescriptive easements there has been a significant problem: the 2009 act provides that an easement can only be “acquired at law” under section 35(1) of the  Land and Conveyancing Law Reform Act 2009 which means

  1. On registration of a court order or
  2. The section 49A procedure whereby an easement is registered in the Land Registry.

This requirement for registration of a right of way has been problematic, especially in rural areas where many roadways and lanes are not in charge of the local authority and may be owned by multiple landowners, some of whom may have passed away or cannot be contacted.

Previous practice was that statutory declarations as to long usage were widely accepted as satisfactory by purchasers, their solicitors, and the banks.

That changed after the enactment of the Land and Conveyancing Law Reform Act 2009. After the 2009 act solicitors decided that registration of a right of way was necessary, and statutory declarations were not sufficient. Lenders began to insist on registration, too.

The problems around easements apply to all properties, but the most problematic areas are in relation to rural homes and farms.

When the transitional arrangements provided by the Section 49A procedure end at the end of November 2021 the options for registering a right of way will be more restrictive.

Right of way options

You can

a) to negotiate a grant of right of way from affected landowners or

b) obtain a court order.

Getting a court order is expensive.

Negotiating a right of way with an affected landowner(s) can be a fraught affair, especially if landowners cannot be traced or think they are in a strong position to negotiate payment or there is a large number of landowners affected.

This is common in rural Ireland where a laneway providing access to land and homes might travel across a large number of properties owned by neighbours.

The more moving parts in any negotiation, the more difficult a successful outcome can be to obtain.

Houses without formal grants of right of way are much more difficult to sell and may be attractive only to cash buyers who will seek a steep discount.

c) You can also apply for registration based on prescription-that is, long use.

If you do not register before 30th November 2021 you will need to show continuous use of the right of way from 1st December 2009 to the date of registration. Prior use, no matter how long, will not be taken into account.

Proving this 12 year uninterrupted use may prove difficult as there may have been some break or interruption in continuous use over the 12 year period.

The problem will arise if there is a dispute or objection to your application by the landowner over whose property you claim the right of way.

Additionally, the owner of the land over which the right of way is claimed may have suffered from incapacity at some point during the 12 year period. This period, then, will not be counted in your period of continuous use as the clock will have stopped when the person lost capacity.

You may also have a difficulty in proving the character of the use for the 12 year period.

As the law currently stands any 20 year period prior to 30th November 2021 can be counted as the continuous use period, even if that was 25 or 50 or 100 years ago.

Additional options for right of way

Implied rights

Implied rights can arise when there is a subdivision of lands. If a right of way served a holding when it was vested by the Land Commission that right of way crystallises under the Land Law (Ireland) Act 1896.

An implied right of necessity may also arise where parcels of land had been split leaving one parcel landlocked and inaccessible. It may be argued that a right of necessity came into existence when the land was split.

Conclusion

The Law Society has made submissions to Government seeking an extension of time of 6 years to section 38 of the Civil Law (Miscellaneous Provisions) Act 2011. This will allow the necessary time for another look at the whole are of easements and their registration.

Hopefully, this representation will have the desired outcome and more time will be given for the legislators to bring in laws of practical benefit and capable of easy implementation as to easements and rights of way in particular.