Legal advice, subdividing commonage land

LEGAL ADVICE: Question: I and four other farmers all with small holdings are co-owners of  20 acres of mountain commonage land. Four of us want to subdivide it, one objects. What can be done?

Answer: ‘Commonage land’ can be described as a holding which is held by two or more persons in specified shares or jointly  and originally purchased from the Irish Land Commission under the Land Purchase Acts.

It also includes land in respect over two or more persons have grazing rights or the right to take turf.

It originated as a traditional form of co-ownership being a remnant of the old Gaelic land system called ‘Rundale’, where land was farmed or grazed communally.

Commonage still persists in certain parts of the country, mainly along the western seaboard. It generally consist of non-arable grazing land held in undivided shares by the owners of adjoining holdings.

Access to a given commonage is restricted to the owners who have the legal right to exclude others not having the rights. As none of the owners have the right to exclude other common owners or exclusively use any part, there is little incentive to improve these lands and these lands are generally under utlized.

Thus commonage has always been regarded as an inefficient use of agricultural land and it was the policy of the Irish Land Commission (now the Department of Agriculture) to divide commonage between those entitled.

The first thing to do is to inspect the relevant folios via the Land Registry online service via Landdirect.ie, which will establish the parties entitled to the commonage.

When these rights were registered in the Land Registry, they were expressed on the register as fractions,  for example 1/5 share , however it is not necessarily the case that the fractional share entered in the register reflects the exent of grazing or turbary rights.

Your problem is that you and three others entitled, want to divide the commonage but that one co-owner will not agree. Fortunately here is a procedure which may overcome this difficulty.

Where one or more, but not all owners of commonage wish to divide up the land they may apply to the Department of Agriculture to compulsorily partition the commonage.

The Minister may then prepare a Scheme for the division of the commonage.

Notice of the proposed Scheme will be served upon the non – consenting commonage owner setting out the particulars of the Scheme, the manner in which objection is to be made, and the time within which objection is to be made.

Co-owners who do not favour the division have the right to object and to appeal to the Court. Those in favour could argue  that that they could support more stock if given exclusive use of additional land.

Also that division might enable reclamation, re-seeding, and forestry.

The objector might argue that the cost of re-fencing would be too expensive and that his stock would lose access to a greater area of shelter and foliage.

If the application is successful, the Minister then makes a ‘Partition Order’ which is registered in Land Registry in due course.

In your case this would divide the plot into 5 portions,  a  portion to be vested in each co-owner.

Before you embark on this course of action it is essential that you go to your solicitor for legal advice.

Good luck!

Mr Deeney is a barrister and former Deputy Registrar of Titles in the Property Registration Authority. He now provides Land Registration Consultancy Services and can be contacted by [email protected]

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