Barrister Peter Bland outlined the six situations farmers might find themselves in when it comes to registering a right of way on an Irish Farmers Journal webinar on the issue on Wednesday 25 August.
There are less than 100 days to 30 November 2021, the deadline to register a right of way when a new law comes into effect.
Bland said that if people are in any of the below situations that they should seek "immediate legal advice".
These are the issues that could arise before 1 December 2021 under the transition to the Land and Conveyancing Law Reform Act 2009.
1. Where the owner of the soil of the right of way has suffered a mental incapacity for a material period between 2009 and 2021
“You may think you know the owner and then you could find out that the registered owner of the land is a parent in a nursing home without the capacity to make this decision [to register the right of way]. You could then lose your right if it was contested after 1 December,” Bland said.
2. If the owner of the soil has legal incapacity
“Some companies or statutory authorities do not have the capacity to grant a right of way.
“Therefore, it can be argued that prescription cannot be effective against them.
“Similarly, where there is a trust or other legal impediment, even arguably when the land that is subject to right of way is mortgaged, and I would not put it past a vulture fund to run that argument.”
3. Where the owner of the right of way is a State authority
“In those circumstances, if nothing is done before 1 December the right is lost, and can’t be claimed again (unless it is being exercised) until 2039. It is vulnerable to the State authority challenging it and disputing it, in which case you could lose it from 2021 to 2039.”
4. Where the user was or can be said to be not "as of right", for a material period between 2009 and 2021
“For example, the owner of the soil starts grumbling and objects to the use, maybe a couple of years ago and the person with the right of way keeps on using it.
“Once that objection has been made the use there after that is not as of right, it is contentious and that time is not counted.
“If you get to 2021 and there has been use within the objection for two years, you only have 10 years under your belt and you can lose your right after 1 December 2021 if it is contested.
“Similarly, if the owner of the soil [claims] to grant permission, and puts up a sign that says ‘access by permission’ or says that they will allow you to go through there. The use after that permission can be said to be not as of right.”
5. Discontinuity or interruption to the 12 years of use
“Remember, you must have 12 years of use under your belt as of 2021 counting forward from 2009. If for a period in those 12 years the right of way has not been used, say you have an alternative access to the right of way and you happen to be using that instead. Access hasn’t been exercised on a continuous basis or if there are just trees planted on the land and you don’t need to go up to it, it means it hasn’t been used as of right continuously from 2009.”
6. Rights of the foreshore
“Oyster fisheries or mussel fisheries, nobody can claim such a right under the new act from the 1 December until 2069. Fishing rights in tidal waters proceedings have to issue before the 1 December.”
Boiling on the stove
Bland said that many people have been allowing this situation to "boil on the stove" until 1 December of this year thinking that it will be easier under the new regime to establish 12 years of use.
“That’s a very bad mistake,” he insisted.
You can watch the webinar back here.