Register Your Right of Way Now!!
The Land and Conveyancing Law Reform Act 2009 (which I will refer to as The new Act) is a complex piece of legislation passed on the 1st December 2009 which contains some very surprising and far reaching provisions relating to rights of way. In fact it applies not only to Rights of Way, but also to other types or rights over property (for example the right to have a septic tank on a neighbour's property or to discharge waste water through pipes located on a neighbour's property).
A Right of way is a right of access and passage to one piece of land over a lane or other piece of ground owned by someone else. Prior to the passing of the new Act there were a number of different methods by which a person could acquire such a right. It could be granted formally in writing by the Owner of the land over which access was required to the owner of land who needs the access. This usually happened where a person bought a site located down a laneway and the laneway gave access to the site and also to other lands adjoining the site. In these circumstances the seller would need to retain ownership of the laneway to access his remaining lands and the buyer of the site would need a right of access along the laneway so that he can get to his site.
The net effect of the New Act is that those rights of access which have been enjoyed simply by long use will no longer be legally recognised. Now, in order to prove the existence of such a Right of Way and in order for it to have legal effect it must be formally granted in writing and must then be registered in the Land Registry. Accordingly, in your particular case, you must ask the person who owns the laneway to sign a document confirming your right of way over it and this must then be registered. You will have to instruct your Solicitor to draft the Right of Way, you will have to have a map prepared showing the Right of Way and, in all likelihood, the owner of the land over which the Right Of Way is needed will want to have the document checked by his Solicitor before he signs it.
If the person who owns the laneway refuses to sign the document, the New Act provides that the person seeking the Right of Way can apply to the Circuit Court for an order granting the Right of Way and that Order must then be registered in the Land Registry. Such a Court application must be made within 3 years of the passing of the New Act.
If you are an individual who believes you have a claim to a right of way which has been established through a period of long use, you should immediately see your solicitor with a view to having it registered bearing in mind that you may have to apply to the Courts prior to the 30 November 2012.
If on the other hand you have established a right of way but have not used it for some time, then start using it. It will be up to the Courts to decide if it is in fact a right of way (or not) based on how often you used it over the years.