‘Can I anonymously register a right of way without my neighbour knowing?’
QIs it possible to quietly register what I believe is my right-of-way access, without upsetting my neighbour? Property maps indicated a right-of-way access to my farm via a traditional laneway dating back 50 years.
A neighbouring farmer who can be a little bit tricky to deal with uses this lane way for storage.
At present I use it for pedestrian access maybe a couple of times a month — I’m unable to use it for vehicular access due to it being blocked.
During a chat on the lane one evening recently my neighbour mentioned that no right of way exists. I did not challenge him — I said nothing. I did, however, check with the local planning office in the county council and was informed that rights of way must be registered with them sometime soon or they may be lost.
Losing a right of the access would cause some hassle if I wanted to use it in the future and perhaps devalue the land around it.
Can I discreetly and anonymously register this right of way through a solicitor or land surveyor?
AA right of way, in its simplest form, is the right of a landowner to pass back and forth over the land of his/her neighbour.
Some rights of way have restrictions and others do not; each right of way depends on its own circumstances. Rights of way cannot be sold separately but must be passed on with the land.
A right of way can be established by written agreement either between two landowners or by long use.
For example, many rights of way were created when a landowner used a piece of land or private road, which belongs to another person, over a long period of time to get to his property.
The main test to prove a right of way was the continuous use of the land for 20 years or more.
Up to December 1, 2009, rights of way acquired over long use like this would generally not be registered.
Under the Land and Conveyancing Law Reform Act 2009, rights of way created by long use must be registered before November 30, 2021 in order to protect them.
You do not lose your right of way if you do not register them before this date, but rather you lose your entitlement to claim your right of way based on your long use of same.
If you fail to register before November 30, 2021, you can only then rely on the 12-year period from December 2009 to November 2021 to register your right of way, provided you have been using the right of way continuously and without interruption during this time.
In your particular case, you say property maps have indicated a right-of-way access to your farm. How is this shown on the maps?
Is the property map you are referring to a map you obtained from the Property Registration Authority? Rights of way would only appear on a map from the Property Registration Authority if a right of way was actually registered with them.
You do not say whether you have another access to your farm so I’m assuming that you do.
There are three ways in which a right of way can be registered: firstly, by way of deed of Grant of Right of Way, which is where your neighbour would sign a document giving you a right of way.
Secondly, by way of an application to the Land Registry setting out your use of the right of way.
The final option is to go directly to Court for an Order declaring that a right of way exists and that Order would then be registered in the Land Registry.
In all scenarios, your neighbour would know about your application to register the right of way.
If you do not want to approach your neighbour to ask him to sign a deed of Grant of Right of Way, then your only alternative is to attend your solicitor and make an application under S. 49A of the Registration of Title Act 1964.
This application is made to the Property Registration Authority (PRA) and not to the County Council. It entails the preparation and execution of an affidavit setting out your and your predecessors in title user of the right of way over the past 50 years.
The right of way must be clearly identified on a map attaching to the application.
This application is then lodged with the PRA but even in this case, your neighbour will know about it as the PRA will issue a notice to the owner of the land over, which you are claiming a right of way, and allow him/her usually 21 days within which to lodge a reply or an objection.
If he/she raises a valid objection, the PRA may decline to deal with it and you may have to go to court.
You say that you are unable to use the right of way due it being
A right of way can be established by written agreement either between two landowners or by long use blocked. A person is not entitled to obstruct or interfere with another person’s use of a right of way.
However, you cannot use a right of way for a purpose other than which you got/acquired the right of way.
Every right of way is different and you should immediately consult your solicitor to get specific advice.
Rights of way are very complex and it is strongly advised that anyone who has the benefit of a right of way or anyone who has land over which a neighbour travels, consults their solicitor as soon as possible to protect their position.
If you are relying on a right of way acquired over a 20-year use to access your property, then you should immediately consult your solicitor to ensure you take all steps necessary to protect that right of way before November 30, 2021.
The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.
Every right of way is different and you should immediately consult your solicitor to get specific advice