Right Of Way: Not by Force, nor Stealth, Nor the License of the Owner

Donegal Democrat January

Almost 150 years ago on the 8th of February 1870 following a trial which commenced a year and a half earlier, Judge Flanagan of the Landed Estates Court ruled that the Rights of Way in Bundoran would be granted in perpetuity to the people of Bundoran. The court awarded the public rights of way for horses, carts, carriages, and foot passengers, at all times, from the Main Street of Bundoran to the seashore and back.


Matters had commenced in September 1868 when Mr James Hamilton bought lands next to what is now known as “the Promenade” and began building a wall along the street in order to exclude the public from accessing the shore. This move of course put him in a position where he could charge tourists to access the beach. Tourists had been coming to Bundoran from the 1770s and were growing in numbers following the opening of the Bundoran Railway Station just two years earlier in 1866.


One key witness, a local Fisherman called Mr Francis Kerrigan who was 75 years of age at the time and had lived in Bundoran all his life recalled that there had always been a public Right of Way for walking, dancing, music and all kinds of entertainment. In addition, he stated that for centuries, people had drawn seaweed and sand from the seashore along the route.


Nowadays, Rights of Way can be every bit as contentious leading to hard fought and often embittered litigation. Where a Right of Way is granted in a document, the route would typically be mapped, and registered as a burden on the title of the subject land. Frequently, Rights of Way would be in use for a very long time and would not be noted in any document or registered as a burden.


The Land and Conveyancing Law Reform Act 2009 changed the law in relation to the length of time needed to establish and therefore register a Right of Way and provided for a new “user period” of 12 years.  There are two significant dates in this respect.


The first is up to and including the day of 30th of November 2021 which is just 22 months from now.  For that period an Applicant claiming a Right of Way by “long user” will continue to claim a right of way accrued under the Prescription Acts and must establish that they have used the right of way for a minimum period of 20 years.


The second period is from 1st of December 2021. For this period an Applicant does not refer to the Prescriptions Acts, but instead would claim under Section 35 of the Land Law and Conveyancing Act 2009 to establish a “relevant user period” which is 12 years in the case of private lands.


The Land Law and Conveyancing Act 2009 has brought much confusion and in turn has led to a new method of claiming a right of way under the Civil Law (Miscellaneous Provisions) Act 2011. This method is by application to the Property Registration Authority directly, without the necessity of first having to obtain a court order.  If the application to the Property Registration Authority is rejected, a claimant can appeal the decision or apply to court.


An applicant may however still apply to court though any applicant considering same should be aware of the costs involved. The Application is served on the owner of the servient lands. If there is a dispute, then and applicant may still apply to court for a Declaration that the Right of Way exists which can then be registered.


Please note where there is only one access point to lands then the law remains unchanged. This is referred to a right of way by necessity. A right of way by necessity would occur, for instance, if there was only one access road to a house or land.

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