Siobhán Durkan a solicitor at our firm recently featured in The Irish Times Property Clinic. You can read the original article here and or read the full article below.
The maps for my property indicated a right of way access to my garden via a traditional laneway.
One neighbour uses this lane way for storage and although I occasionally use it for pedestrian access, I am unable to use it for vehicular access due to her stored items partially blocking it. In casual conversation my neighbour has stated that no right of way exists. I did not challenge her view as I felt it would lead to a confrontation.
I have been told that rights of way must be registered with county councils sometime soon or they may be lost. Loss of the access would cause inconvenience and some devaluation but I don’t wish to stir a hornet’s nest with my neighbour. Is there some way I can anonymously or discreetly register this right of way through a third-party professional such as a solicitor or land surveyor?
We would advise as a starting point that you check your title deeds to confirm if a right of way is registered in favour of your property. This can be done by viewing the folio to see if the title is registered in the Property Registration Authority (Land Registry) or the title deeds if the title is unregistered. Your solicitor who acted for you in purchasing the property may be best placed to assist you.
Land Registry searches can be carried out on landdirect.ie by you or your solicitor. You do not need an account to access this information. A useful innovation in recent times allows you to search by Eircode. You should be able to identify your property and the laneway on the land direct map and if the title to it is registered it will identify a folio and you can view same at a cost of €5.00 to identify the registered owner. If a right of way over the laneway is registered it will be highlighted yellow.
If the laneway is not registered in the Land Registry, information about the laneway may be available from the Registry of Deeds. Inquiries can also be made of the local authority to confirm it is not a public laneway.
If the right of way is not on the folio or the title deeds the simplest and cheapest way of formalising the right of way is entering into an agreement or deed with the owner of the laneway. If an agreement can be reached it can avoid costly disputes or issues down the road.
If you do not wish to raise the matter directly with your neighbour, and if you have used the right of way for at least 20 years without interruption, an application for registration of the right of way may be made directly to the Land Registry under section 49A of the Registration of Title Act, 1964. It is important to note if your title is unregistered, ie not a folio, that an application for first registration must be made in respect of your property before the right can be registered.
The registry will serve notice on the owner of the laneway and so your neighbour is likely to become aware of your application to register the right at that stage. If any objection is lodged the registry will issue an order refusing registration which can then be appealed to court. Your solicitor will advise you on same.
There is no question of a cut-off point occurring in 2021 when a claim to a right of way will be lost. All that changes in 2021 is the basis on which the right can be claimed. The legislation provides from December 1st, 2021, that 12 years user of the right rather than 20 years must be established.
Siobhán Durkan is a solicitor at P O’Connor & Son solicitors, Co Mayo.
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