Boundary & Right of Way

Boundary disputes

When an action of yours, or a neighbour’s, causes a dispute in relation to the breach, or perceived breach, of a land boundary it can quickly escalate into warfare!

For instance, if a neighbour complains a new wall is on their land, or their new extension takes up part of a pathway between your houses, what starts as a minor disagreement can quickly escalate into a full scale dispute, which causes untold damage, perhaps for generations.

Costs Involved

Even more damaging are the costs involved. Ultimately, the cost of protecting your right to that land in court could be very expensive, so it pays to think hard before rushing into legal action. It is always worth employing the services of an experiences mediator in these situations.

Mediation is a flexible, timely, confidential and voluntary process. Each party has the opportunity to state their position, which never really happens in a court setting. The needs of the parties are paramount.

Advantages:

  1. Costs are minimised.
  2. Issues are clarified – evidence is provided if necessary.
  3. Options are developed – discussed.
  4. The parties are encouraged to develop possible solutions.
  5. Relationships are respected.

Right of Way Disputes

Few property issues cause such anger and division as disputes over rights of way in rural Ireland. These disputes can divide communities, setting neighbour against neighbour. Farmers fear allowing walkers over their land. Laneways which are presumed to be rights of way for generations are found not to satisfy the test in the courts.  See case here.

The Land and Conveyancing Law Reform Act (2009)

This is a complex piece of legislation passed on the 1st December 2009 which contained some very surprising and far-reaching provisions relating to rights of way. It applied not only to Rights of Way, but also to other easements over property (for example the right to have a septic tank on a neighbour’s property, or to discharge waste water through pipes located on a neighbour’s property).

Rights of Way in Ireland

The majority of rights of way in Ireland were not granted in writing, but were acquired by long usage (the legal term is Prescription). Under the old rules the user of a right of way had to establish proof of 20 years continuous usage (longer if the land owner is the State). Once there was proof of at least 20 years of continuous use of a laneway, the person using the laneway could establish a Right of Way.

If that person was selling his property he would furnish the buyer with a formal declaration of long usage – a sworn statement that the property being sold had been accessed over the other piece of ground for more than 20 years (reduced to 12 years by the New Act).  With the passing of The New Act, the rules changed. The holder of the right of way now needs to establish his right by registering it with the Property Registration Authority, and the land owner needs to comply with this.

Written Right of Way

The New Act led to severe difficulties for people who wished to sell or mortgage properties which has enjoyed these prescriptive rights. The requirement to seek a written right of way led to conflicts between neighbours where no conflict had previously arisen. Many people were therefore unable to sell or raise finance on such properties. This result was never intended by those who drafted the new Act.

Property Registration Authority

Some improvement has now been made following the passing The Civil Law (Miscellaneous provisions) Act 2011 which provided new procedures to enable a person whose property has previously enjoyed these Prescriptive rights to register them in the Property Registration Authority (PRA) without the need to seek a formal written agreement. In the event of a dispute the PRA may refuse to register the right of way, and it will go to the courts. It is however wise to flag the intention to the landowner, as the PRA will contact him for confirmation.

Resolving Rights of Way Conflicts

Many landowners will be upset by what seems like an unnecessary legal document attached to their land, even though the right may have existed for many years. It is important to manage the conversation around this, in order that a manageable situation does not escalate into a full blown conflict.

Many mediators have backgrounds in property, and can help to identify the issues, fears and perceived threats, clarify them, reality check the positions, and assist in developing a workable satisfactory agreement for all.

Advantages:

  1. Speedy – timely – cost effective.
  2. Respectful of the relationships.
  3. Brings clarity to the situation, perhaps for the first time.

 

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