Legal Advice: We have used a right of way for many years, now our neighbour says he owns the land and is blocking our use of it. What can I do? 

This is not an uncommon though upsetting problem.

Firstly you need to definitively settle the ownership of the land over which you exercise the right of way.

This can be done through a Land Registry Mapping Search. The application form for the search can be printed down from the Land Registry website and the search application should be accompanied by a suitable map on which the location of the way is clearly marked, for example a Land Registry Compliant map which can be obtained from Ordnance Survey Ireland.

The land registry search will identify the ownership of the land affected by the right of way and provide you with the folio number for same. You can then inspect the folio and title map on online for €5.

Once you establish that your neighbour in fact owns the land,  your next step is to ascertain whether your right of way is based on a deed of grant and if so whether the right of way is registered against your neighbour’s land affecting his ownership and benefiting yours.

If it transpires that it not so registered, all is not lost.  You  may have acquired a right of way over the land based the long enjoyment and use of the right of way by you and those who went before you, ie your predecessors in title. This is called a right of way acquired by prescription.

The period of long user and enjoyment required is, at a minimum  20 years. You must be able to show use and enjoyment as of right without force, secrecy and in the absence of permission for the necessary period, ie that you have enjoyed the right and that your neighbour owner never objected.

The use and enjoyment must be for a continuous period,which has been interpreted as regular user as opposed to intermittent user. Formerly,  you had to go to court to get an order establishing a right of way acquired by long use and enjoyment.

However since 2011, you can now apply directly to the Land Registry for uncontested claims where the required user period can be established. The application must contain a full and comprehensive description of the right of way. It should be accompanied by a suitable map, eg an OSI Land Registry Compliant Map on which the precise extent and dimensions of the  access way are clearly marked by a competent land surveyor with the right of way claimed clearly highlighted.

In the circumstances you describe it is possible that objection will be made by by your neighbour in which event the Land Registry will refuse the application and you will have to go to Court to establish your acquisition of the right of way. However there may be merit in making application in the first instance to the Land Registry.

The process of assembly of proofs, substantiation of the claim and consideration of the merits of any objection raised, made might considerably assist if proceedings become necessary at a later stage.

As always in these matters the first thing to do is to go and see your solicitor. He or she will require some considerable help from you in assembling the necessary proofs before any application for registration, either through Land Registry or the Court,  can be prepared.

By John Deeney 

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 [email protected].

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