A new rights of way law came into force on Tuesday 30 November, which repeals a number of changes to the law on rights of way that were due to come into effect on 1 December 2021.
Common examples of prescriptive easements, also known as rights of way, include:
Minister for Justice Helen McEntee said the law averts a legal cliff-edge that was due to occur on 1 December, when major changes to the law on private rights of way and other prescriptive rights were due to come into effect.
"I know that those impending changes have been causing worry and stress to many people, with farmers and homeowners at risk of losing important rights that have been enjoyed for many years without dispute. This act repeals those changes, and protects acquired rights and acquired years of use."
Serious concerns had been raised by stakeholders, including the Law Society and the Bar Council, about the changes that were due to take effect on 1 December 2021.
The Department of Justice has said the law also ensures that claims to validate or register a prescriptive right that are already pending on 30 November (before the courts or the Property Registration Authority) will continue to be decided as they were before 30 November (as transitional cases, they were decided under the law that applied before the 2009 Act).
It also guarantees that periods of long use acquired before or during 2009 to 2021 will not be lost on 30 November if no claim has been made, but can still be counted in a claim made after that date as the clock is not re-set.
Any new claims brought after 30 November 2021 will largely be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 act and the Department has confirmed it will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. This will be optional, as it was before the 2009 act, rather than a mandatory requirement to avoid losing any rights acquired through long use.
Minister McEntee said that while the deadline has been removed, a more comprehensive reform may be required.
“The Government has agreed to establish a time-bound review to identify any further changes that are desirable, to ensure that this area of law is placed on a sustainable long-term basis,” she said.
The minister said she hopes the review could start early in the new year.
Under the old law, 30 November 2021 was the deadline to register private rights of way.
Had there been no change to the legislation and the 30 November deadline came to pass, if a right of way was not registered by this date, landowners would have had to show continuous use of a right of way from 1 December 2009 to the date of registration after the 30 November deadline. This would have been the case regardless of whether the right of way was used for decades beforehand.