Many of us enjoy rights of way or easements without ever really thinking about them. The beneficiary may access their house or land through a neighbour’s private lane. They do not own the private lane, they do not have a piece of paper granting a right of way, but they believe they are entitled to use it. They may, therefore, seek to register this right of way. But what if you want to prevent someone registering a right of way over your land?
Rights of way can come into existence without any contract or agreement and may arise from the continuous and uninterrupted use of a right of way over another’s lands for a minimum period of 20 years. This is known as a prescriptive right of way. To establish a prescriptive right of way, there must be dominant and servient lands. The dominant land is the land benefitting from the right of way and the servient lands are those over which the right of way exists. Following the introduction of the Land and Conveyancing Law Reform Act 2009 (as amended) (the “2009 Act”), it is important to consider formally registering a prescriptive right of way in order to secure it. It can be equally important to be aware of what steps you need to take to prevent registration of a right of way as a burden on your property.
The Land Registry Section 49A procedure
The s49A process was introduced by the Civil Law (Miscellaneous Provisions) Act 2011 and involves the lodging of a registration application with the Property Registration Authority (the “PRA”) by the dominant landowner. The applicant must establish sufficient facts on affidavit to show proof of the acquisition of an easement by prescription which includes evidence of the requisite user period; that the exercise of the right has been without force, without secrecy and without permission; and that the grant of the right would not have been illegal. Once received, the PRA will send notice of the application to the servient landowner. This gives the servient landowner the right to object to the registration sought. The period allowed for a reply or objection from a servient landowner is 21 days with an additional 5 days allowed for service of the notice. If no objection is received and the dominant owner has established all necessary proofs, the PRA will proceed to register the right sought.
There is no exhaustive list of what constitutes a valid objection to the registration of a prescriptive right of way. The objection must be valid and sustainable and must dispute the facts alleged in the applicant’s affidavit. Examples might include where the right of way is impassable or overgrown or has not been used for the requisite time period. Where a valid objection is made, the PRA may refuse the application or the application may be withdrawn. The lodging party must then apply directly to the courts to seek to establish a right.
Implied release by abandonment
The question of whether a right has been abandoned or not will turn on the facts of the case. The Irish courts have repeatedly stressed that mere non-use is not proof of abandonment. There must be an intention to abandon and extinguish. In the case of O'Gara v Murray (1988 case) a right of way existed in 1912 and was used up to 1950. It was not used as a right of way between 1950 and 1988. The court found this disuse was not enough in itself to indicate abandonment. However, the non-use of the right of way, together with the fact that the owner of the land the subject of the alleged right of way had been using the area as a vegetable garden, indicated abandonment. The right of way had therefore ceased to exist.
There is no requirement that the servient landowner consent to the S49A procedure, rather the servient landowner is given an opportunity to object to the claims of the dominant landowner. Where no valid objection is made, the right of way will be registered as a burden on the servient lands. The burden, therefore, lies on a landowner to object in a timely manner in order to resist a prescriptive easement becoming registered as a burden on their land.