12 10 2021 Insights Real Estate

Why are we hearing about rights of way?

Reading time: 3 mins

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On 21 September the Minister for Justice, Heather Humphreys TD, announced that the Cabinet had approved the drafting of a new law which would halt for now what would have been a significant change to the law relating to easements, due to come into effect from 30 November 2021.

Unlike the prominent Northern politician who was quoted in the Irish Examiner on 20 September as having said “when we are able to make easements, we have to measure those easements”, our Justice Minister was referring to the term in property law which effects many properties, residential and business alike, in one way or another. Take the straightforward example of a semi-detached house in a modern housing estate. It is highly likely that the deed to the house or site, transferring ownership from the developer into the first house owner, also contained rights for the site, which would benefit whoever owns the site now or in the future. These would allow the owner of the site to tap into and use estate services, like water and sewerage pipes, and to use the estate road to get to and from a main public road - these types of rights over someone else’s property are called ‘easements’. In most cases, control of the estate road and the estate services will later pass or be “taken in charge by” the local council, removing any practical need for these rights, as the Council will have the power and responsibility to control traffic and parking and for the maintenance of the roads and footpaths.

Sometimes, easements are not set out or provided for in the title deeds. They may just have to be implied, where for instance a landowner sells a site and the only way to get to and from that site from any other property, or the public road, is through a lane or roadway in the original landowner’s ownership.

Other times again, and this gets us to the Minister’s statement, a property owner might have no written right or implied right to use or access for instance a laneway to get to and from the public road. Ownership of that laneway may be split between various owners, and no permission might have been sought or given for the site owner, who has regularly used the laneway for access for many years.

The legal rules as to whether the site owner might in fact have an enforceable easement, here to continue using that laneway, are complex. They arise from centuries of court cases where tests and exceptions to tests were teased out, and also by 19th century legislation which was then significantly changed in the Land and Conveyancing Law Reform Act 2009 (the transition period for the new rules, which were amended in 2011, is due to end this coming November). In general terms, and there are several significant exceptions, not covered by this article, for our site owner to have had a “prescriptive” easement or right of way over that laneway, that site owner, or whoever previously owned the site, would have had to frequently use the laneway ‘without secrecy, without interruption and without permission’ from the actual owner or owners of the laneway for at least the last 20 years. Without a deed giving a right of way, it was conveyancing practice to accept as satisfactory evidence of the easement a statutory declaration showing or setting out this use of the roadway for at least the previous 20 years.

The 2009 Act brought about significant changes to land law in Ireland. Almost hidden in the details were changes to the law on these prescriptive easements. With a then 2 year lead-in period, the 20 year threshold for establishing the easement would be reduced to 12. On the other hand, to avoid perceived uncertainty, anyone who claimed a prescriptive easement would have to either go to court to have the easement recognised, or else have that easement registered in the Property Registration Authority (PRA) within that two year period. If not, then the ‘qualifying period’, now down to 12 years, would have to start running again – so rights used for decades could now be lost. That legislation was brought in just after the start of the crash, and few had the money or inclination to take the actions required under the new legislation. Mainly for that reason, in 2011 implementation of the new provisions was delayed, pushing back the end of the transition period to these new rules until 2021, which seemed a long way off, and also allowing a new form of application to the PRA. The PRA will only progress these applications with the consent of the owner of the land on which the easement was claimed, so it is not of much use practically speaking. However, there was no great notice taken in the public eye of these changes, and even then, few property owners have wanted to stir up a hornet’s nest with neighbours, spend time and money investigating who might own the land comprising the easement, and then take proceedings against them – especially if, as they saw it, things had been working well over the years without trouble.

The legal profession is eagerly awaiting sight of the Minister’s proposals, and hoping that they will solve problems, rather than creating fresh ones.

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