A right of way (easement), is a right of passage over one piece of land owned by someone else, to access another piece of land.

IN the past, various means were used to acquire a right of way and it could be granted formally in writing from one owner to another, either as part of a property transfer, or as a separate transaction. When granted as part of a property transfer, it was normally then registered in the Property Registration Authority (PRA) as part of the property transfer process.

This process is useful as yellow lines on the PRA maps highlight the registered rights of way. However, when a right of way was granted separately, even formally in writing, many were not registered, so the knowledge about the existence of the right and the supporting documentation can either be lost or difficult to access to confirm its existence and/or details.

Right of way can also be established by long usage (prescription). In the past (before December 1st, 2009) evidence of at least 20 years continuous use was required as proof of long usage to establish these informal rights of way. Sadly the majority of rights of way in Ireland were not granted in writing and are not registered, so a right of way may exist over a property which is not documented or recorded anywhere. If you only began using the right of way after December, 1st, 2009, the relevant user period is 12 years.

Many of these rights are private rights of way, where the right is granted to a named property owner and their successors in title and so the existence of a private right of way does not mean that anybody from the general public can use it. The right is restricted to the person or persons who benefit from the grant and landowners are well within their rights to exclude all others from using private rights of way.

The difficulty arises when the right of way was acquired by long usage – the landowner may not know of its existence, or who the rightful beneficial owner is.

In circumstances where landowners are excluding the public from accessing their property, (a normal landowner’s right), the existence of a previously unknown right of way may come to light. The user of the right of way must then provide evidence of long usage ‘continuous over 21 years’, by themselves ‘to create a private right for themselves’, or by the general public ‘to create a public right of way’.

land act 2009

The new Land and Conveyancing Law Reform Act 2009 introduced a number of changes for rights of way, as follows:

The 2009 Act also requires the registration of all informal rights of way in the PRA. The length of time landowners were given to register these rights has been extended to November, 30th, 2021. That is now only five years away, so if you currently benefit from one of these informal unregistered rights of way, time is running out.

Property purchases in Ireland operate under the ‘buyer beware’ principle (caveat emptor) which specifies the purchase is ‘as is’ including all defects. Therefore, purchasers should be particularly careful of the existence of any rights of way over the property they are purchasing, especially informal and unregistered rights of way.

Dr Daragh O’Brien is a chartered surveyor with O’Brien Prendergast & Associates

Web: www.obpa.ie