If person A, who owns a parcel of land that is accessed by an unregistered right of way (ROW), dies or is incapacitated and the land is bought by person B, what happens the ROW?

“It’s a problem if the owner of the soil has an incapacity and if the land was bought in the last 12 years from somebody who died, is incapacitated, or uncooperative. You can only give evidence as to your period of use.

“You don’t know what happened before you, therefore you’ll have difficulty in procuring registration or in succeeding in inaction, because you don’t have the 12 years under the old prescription.

“If you have only used it for a few years since buying it, you can’t swear to use it during the time of your predecessor and title.

“If the person is still around, you can get a supporting affidavit from that person, but that depends on them wanting to help or being alive. If the previous [title-holder] is dead or is incapable, the Property Registration Authority might not accept an application to rely on affidavits from family or friends of the predecessor. If you have to go to court, you may not succeed in litigation.

“There is a get out of jail card, which is technical and requires research. If you can show on the Ordnance Survey map from the Land Commission in the 1900s that it was there at the time, then you can establish independence or prescription, a separate statutory implied right under Section 34 of the landlord act of 1896.”

I farm on land which was originally a large estate that was divided by the Land Commission back in the 1940s. Dividing the various plots was a roadway with a ROW for all the land users – concrete posts and barbed wire was erected to divide the roadway from the plots of land. Does the Department of Agriculture now own this ROW?

“Check the folio to find out who is the owner of the ROW, or if the Department of Agriculture owns the route of the ROW.”

A neighbouring farmer states that he owns the ROW adjacent to his land – which other land users have to pass to access their farms. The roadway is in a dangerous condition and he will not allow the other land users to repair the roadway. This neighbour has also removed the wire and allowed his cattle to roam along the ROW. Can he do this?

“Whether an adjoining owner can remove the fence depends on whether he is the owner of the fence – check the folios. As for repair of the ROW, if you have a ROW, then there is an ancillary right to repair and maintain it.

“It can be repaired, but don’t change the character of it. So, if it was grass, it stays grass. Stockholders have a duty to keep their stock in, they have to be in control of the land and can’t let animals wander off.”

My father has used a roadway to access his bog for 60 years without issue. This roadway travels through an area of commonage owned by four other parties. Last month, a gate was erected and locked at the road entrance. It was agreed verbally that access would be available for the turf harvesting season. What can he do?

“The erection of a locked gate is interference with a ROW, combined with a verbal agreement to give limited access means the user has not been as of right, since those events occurred, come 1 December. It gives permission to use on this occasion or season. One or all of the co-owners of the combination could dispute the right.

“The father has used the ROW for 60 years, without any objection, but now it can be said that it has not been in use for the full 12 years since 2009 because it became contentious because of those events. It would be necessary to have all landowner’s signatures to execute a deed.”

What happens if a vulture fund takes over land over which you have a ROW?

“The landowner needs to take action because if a vulture fund takes over the land, and there isn’t a ROW registered, they could lose the ROW. Receivers don’t have much knowledge about the local history of the case and who’s going in and out over land etc. There is a race to somebody claiming the ROW – vulture funds can ignore requests to establish ROW.

“If the request is ignored and the vulture fund sells, then you might have trouble establishing ROW with a new landowner because essentially, they’re an innocent party.

“Look at the land directory, the land registry or search in the Registry of Deeds. It could be unregistered land, which makes it more difficult.

“The case may require the person to issue proceedings, to look for a substitution service by making a court application to deem the service of those proceedings good, in order to stop the clock and come in under the old rules. This person needs to go to their solicitor and get advice.”