Registration of Rights of Way Acquired through Usage
There are a large number of Rights of Way (ROW) in Ireland acquired by usage where there is no written document creating them. A ROW arises if you own a piece of land and in order to get to it you must pass over a piece of land or roadway owned by someone else.
Traditionally such a ROW was evidenced by a statutory declaration stating that Mr X had used a roadway owned by Mrs Y continuously for without let or hindrance for over 20 years for all purposes.
Under the new rules contained in The Land and Conveyancing Law Reform Act 2009 all such rights of way acquired by usage must be registered with the Property Registration Authority (PRA) by 30th November 2021. The new rules will formalise such ROW’s.
A ROW created through a formal deed will usually cause no difficulties when selling property. It is when there is no deed that problems arise. A person can register a ROW through use by applying directly to the PRA, once it is uncontested. If it is contested the parties must go to court for recognition and registration of the ROW. An affidavit must be sworn by the person claiming the ROW including as much detail as possible; how and when it is used, the details of the land over which it is exercised and the name and address of the person who owns the land together with a map identifying the ROW. The PRA will then notify the owner of the property concerned and, once it is not contested, the right will be registered.
Many property solicitors now insist that all ROWs are registered with the PRA prior to the completion of the sale of property. To establish entitlement to a ROW a person must prove, first, at least 20 years continuous and uninterrupted use. Second, it must be a clear, open and transparent use. Finally, they must not have the consent of the land owner.
Since the 2009 Act, the person must only show 12 years continuous use. Originally the deadline for registration of ROW was. December 1st 2012 but it was felt that the period was too short and the deadline was extended to the 30th of November 2021 in 2010. After December 1st, 2021 a person will have to apply to the courts for recognition and registration with the PRA. It remains to be seen as to whether it will be necessary to extend this deadline again when December 1st 2021 arrives.