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

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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.

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 only way to obtain a right of way will be

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.

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.