RIGHTS OF WAY
If you enjoy a right of way to access your property, farm or house then it is very important to ensure it is registered, and if not, take steps to ensure its registration. In the event that you enjoy the benefit of a Right of Way that is not registered, there are three ways of rectifying the matter before the 30th November 2021 deadline:-
1. Deed of Right of Way
This is only an option where there is no dispute with the owner or owners of the land over which the Right of Way is enjoyed. A Deed of Right of Way is drafted by your solicitor and a Land Registry Compliant map would need to accompany the Deed marking the Right of Way. Both the owner of the land over which the Right of Way is located would have to sign and also the person to whom the Right of Way is being given. This Deed would then be registered in the Land Registry. This is the cheapest and by far the easiest way of registering a Right of Way and formalising the position as it exists on the ground. There is no deadline for registering such deeds.
2. By application to the Land Registry
Again, this is only particular to cases where there is no dispute. You have to have the requisite period of 20 years to consider this route. This is done by way of direct application to the Land Registry under Section 49A of the Registration of Title Act, 1964. A Form 68 is prepared and lodged in the Land Registry and is served on the owner of the lands. The Land Registry adjudicates on the application. The difficulty with this is a claimant has no guarantee a landowner might not object and if they do generally the registration does not proceed. The claimant can still apply to Court for a declaration that the Right of Way exists. However, given the fast approaching deadline if a dispute is expected it would be more prudent to go straight to option three below and skip this option entirely.
3. By way of Court
If a dispute has occurred in relation to the right of way, the options for the claimant narrow again. If the person makes an application to Court and succeeds the Court will declare that the Right of Way exists, will identify the route and nature of the Right of Way and may order registration of the right as a burden on the Folio. (If the Title is registered in the Land Registry as distinct from the Registry of Deeds). Depending on the facts of the case, it may be necessary to issue proceedings before the 1st December 2021 if the claimant has 20 years user prior to the deadline. There is no requirement that the court action be dealt with, but legal proceedings must have been initiated by the deadline.
Rights of Way are very complex, particularly if ownership of the roadway, path, or other route of Right of Way is divided between a number of different owners. It is strongly advised that any person who enjoys the benefit of a Right of Way should consult with their solicitor now. Apart from the time required to prepare the necessary map and the deed/application, additional time may be required if court proceedings need to be instituted. One cannot necessarily assume that the landowner over whose property the right is enjoyed will consent to the application. Even if there is no dispute, the existence of an unregistered Right of Way claimed on foot of long user can delay a mortgage, sale, or gift of all or part of the property for the benefit of which the Right of Way is claimed. The best advice that can be given to any farmer or landowner whose accessing all or part of his or her by a road or track where the Right of Way is not registered on title is to consult a solicitor as soon as possible. The significance of the 30th November 2021 deadline will depend on the facts of each case.
