Rights of Way?/Is the clock ticking?

A particularly Irish phenomenon, rights of way tend to generate regular discussion particularly in rural areas. Recent high profile cases such as the Lissadell case resulted in huge interest and concern in relation to rights of way. The Lissadell case related to what is known as a public right of way. However predominantly the main issue of concern for people on a daily basis are private rights of way which people have over other peoples property and rights of way affecting their own property. The law on rights of way was radically overhauled under the Land and Conveyancing Law Reform Act 2009 which introduced substantial amendments to the law in relation to the acquisition of rights of way by long user. In the past people could acquire rights of way over lands they did not own simply by using the road or route over a certain period of time usually a minimum period of twenty years. There was no requirement for these rights to be registered in either the Land Registry or the Registry of Deeds.

Under the new legislation a party who claims an entitlement to a right of way can make an application to the Land Registry to have that right of way registered. The application that can be now made to the Land Registry is similar in format to the application that has often been made by Solicitors on behalf of clients to register squatters title. Under the 2009 Act rights of way acquired by long user could only be registered on foot of a Court Order. However amending legislation The Civil Law (Miscellaneous Provisions) Act 2011 provided that an application can be made to the Land Registry without the necessity of first obtaining a Court Order. However a Court Order will be required where there is a dispute between the parties.

More importantly whilst the 2009 Act provided that all right of ways applications had to be brought by December 2012, section 35 of the 2011 Act has extended that time-limit up to the 1st December 2021.

Accordingly it is now a good time to begin a discussion with your Solicitor in relation to registering any Right of Way attaching to or affecting property.