Property Investor

Rights of way have long been fraught with uncertainty and a looming deadline means property owners must register them or lose them

THERE ARE countless thousands of rights of way all around the country – in cities and towns, between houses and between apartments, across courtyards and laneways, at workplaces, and throughout the countryside. For many, they are an important part of daily life. Yet, they have had a low profile. At least until now.

Many add significant value to properties. They have recently become endangered and placed at the centre of a lot of quiet legal activity. The Land Registry has been experiencing an “avalanche” of applications to register some of these long-standing rights over neighbours’ properties.

The rush to register has been because of a deadline of November 30th, 2012, imposed under a 2009 Act to either register or lose these rights of way. It now appears that the pressure will be relieved.

The Minister for Justice, Alan Shatter, told the Dail on May 26th that he plans to extend the deadline of November 30th, 2012, for registering until 2021.

This will settle nerves and ease the looming possibility of the original deadline expiring with many rights of way not being registered. They would then be lost which, in many cases, would have very serious consequences. But, despite the extension in time proposed by Mr Shatter, the wise will still act now to protect their rights of way.

The registration rule applies equally to other rights over neighbours’ properties, such as rights of support between terraced houses, rights to maintain a septic tank or to lay pipes, rights to light, or even to take turf off another person’s land. The word is: register them or risk losing them.

The new rule, and indeed the planned time extension, is a positive development. It is part of a major reform of our property laws which have been antiquated for many years.

The law has now finally been comprehensively reformed, and rid of rules going back to the Normans, by the Land and Conveyancing Law Reform Act of 2009. The Act lifted the dead hand of about 150 ancient pre-Independence laws.

So if you have a right over a neighbouring property, it must be registered in the Land Registry or in the Registry of Deeds before November 30th, 2012, to be extended to 2021. The right only lasts as long as your neighbour’s title. Many of these rights are sold with properties from one person to another and so are already registered and recognised. But those that accrued over time are not.

Those rights that are not registered are paperless rights. They came into being by simple use over the years. They did not need to be registered. But they do now. They must have been used for least 20 years without stealth, permission or force.

In theory, these rights of way go back as far as living memory which is notionally dated to 1189, the year Richard I became King of England. But traditionally, 20 years has been a sufficient period of time for a right of way or other right over another person’s property to be recognised.

To register your right of way, you need the neighbour’s consent.

If you don’t get it, you must get a court order. This can take time. And this must be followed by registration. In real life, serious delays can, and do, occur.

Apart from these existing rights over neighbouring properties, new rights being claimed over a neighbour’s property will only need proof of 12 years uninterrupted use from now. But if you then claim rights over State lands, you will have to prove 30 years’ use. It is 60 years’ use if you claim a right of way over a foreshore.

As lifestyles change, parking your car in someone else’s property without force, stealth or their permission could develop into a right. So also could walking, cycling or driving through private grounds.

Whether it is access to the Old Head of Kinsale in 2003, Pat Kenny’s dispute with his neighbour in 2008, or the gates being closed at Lissadell House in Sligo in 2010, rights of way can be fraught with uncertainty, upset and emotion.

The much-praised new law is intended to bring certainty and clarity . . . and harmony. Hopefully, it will live up to its billing.

* PAT IGOEis a solicitor in Blackrock, Co Dublin