Question: There is a laneway running down the side of our farm. Four others and I use it, I own it out to the middle and the neighbour owns the other half and the people further down just own some fields. There is no dispute and we have a gate on top to which we all have a key. There is nothing in our folios saying anything about right of way. What can we do to give everyone a legal right of way? What if I want to sell a site on it? Or resurface it?
Answer: You are not legally obliged to register a right of way. While the Land and Conveyancing Law Reform Act 2009 initially introduced a requirement to register certain rights of way, this was amended by the Land and Conveyancing Law Reform (Amendment) Act 2021 before the deadline for mandatory registration passed. As a result, registration remains optional.
However, registering a right of way can offer significant benefits. Once registered, the right of way is recorded on your property’s folio, providing clear evidence of its existence and scope. This can be particularly useful in preventing disputes and facilitating property transactions, such as sales or mortgages. Generally, as security for a mortgage, a bank requires land accessed via a right of way to have it registered.
A right of way can be registered with Tailte Éireann, formerly the Property Registration Authority, either by agreement or through court application.
How does it work?
By agreement between parties (Deed of Grant): If both landowners (the person claiming the right and the owner of the land it crosses) agree, then a Deed of Grant can be drawn up, confirming the right of way. A land registry compliant map needs to be prepared by an engineer/surveyor illustrating the right of way.
This deed is then submitted to Tailte Éireann for registration. The folio must detail the dominant tenement (the land benefiting from the right), and the servient tenement (the land over which the right passes). Each of the landowners benefitting from the right of way will have to get a Deed of Grant from each owner of the land over which the right of way crosses.
Given that you are all in agreement, the various rights of way can be incorporated into one deed and your solicitor can assist with preparing the deed and lodging it to Tailte Éireann for registration. This is the best option for situations where all parties are cooperating and there is no dispute.
One sided application direct to Tailte Éireann: If there is no dispute but the other landowner is unwilling to sign a Deed of Grant, an application can be made to Tailte Éireann under what is called the Form 68 procedure. This is for uncontested rights of way which have been used without interruption, as of right, and without force for a continuous period – typically 12 years for private land.
It will require the person who claims to have a right of way to submit an affidavit which is a sworn statement giving an account of the use and history of the right of way. The affidavit is normally drafted by a solicitor and will have a map illustrating the route of the right of way. It will also have the name and address of the owners of the land over which the right of way is exercised. The right may be registered if no objections are raised (a notice is served on the landowner). If there’s an objection, you may be referred to the Circuit Court.
By court order: If there is a dispute or if the landowner does not agree, you can apply to the Circuit Court under Section 35 of the Land and Conveyancing Law Reform Act 2009. The court may declare that a right of way exists and direct that it be registered. This is often used when there is no formal deed and the prescriptive route is challenged.
Maintenance and upkeep: Generally there is no formal agreement regarding maintenance and upkeep of the right of way. The practice as to who or when maintenance is done tends to develop over time.
For roads that are not public roads, local authorities may, at their discretion, provide assistance through schemes like the Local Improvement Scheme (LIS). This scheme offers funding for improvement works on small roads and laneways in rural areas that are not maintained by local authorities but provide access to homes, farms, or amenities.
Extent of right of way: Generally, a deed of right of way, is binding on successors and assigns. This means if you sold land for a site for example, the new owner is also bound by the right of way. If the right of way is limited by scope to agricultural purposes only, it may not be sufficient to be used in order to access a site/dwelling. It is probably in everyone’s interest to give a right of way for at least agricultural and residential purposes.
Aisling Meehan, agricultural solicitors and tax consultants.
Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie
Question: There is a laneway running down the side of our farm. Four others and I use it, I own it out to the middle and the neighbour owns the other half and the people further down just own some fields. There is no dispute and we have a gate on top to which we all have a key. There is nothing in our folios saying anything about right of way. What can we do to give everyone a legal right of way? What if I want to sell a site on it? Or resurface it?
Answer: You are not legally obliged to register a right of way. While the Land and Conveyancing Law Reform Act 2009 initially introduced a requirement to register certain rights of way, this was amended by the Land and Conveyancing Law Reform (Amendment) Act 2021 before the deadline for mandatory registration passed. As a result, registration remains optional.
However, registering a right of way can offer significant benefits. Once registered, the right of way is recorded on your property’s folio, providing clear evidence of its existence and scope. This can be particularly useful in preventing disputes and facilitating property transactions, such as sales or mortgages. Generally, as security for a mortgage, a bank requires land accessed via a right of way to have it registered.
A right of way can be registered with Tailte Éireann, formerly the Property Registration Authority, either by agreement or through court application.
How does it work?
By agreement between parties (Deed of Grant): If both landowners (the person claiming the right and the owner of the land it crosses) agree, then a Deed of Grant can be drawn up, confirming the right of way. A land registry compliant map needs to be prepared by an engineer/surveyor illustrating the right of way.
This deed is then submitted to Tailte Éireann for registration. The folio must detail the dominant tenement (the land benefiting from the right), and the servient tenement (the land over which the right passes). Each of the landowners benefitting from the right of way will have to get a Deed of Grant from each owner of the land over which the right of way crosses.
Given that you are all in agreement, the various rights of way can be incorporated into one deed and your solicitor can assist with preparing the deed and lodging it to Tailte Éireann for registration. This is the best option for situations where all parties are cooperating and there is no dispute.
One sided application direct to Tailte Éireann: If there is no dispute but the other landowner is unwilling to sign a Deed of Grant, an application can be made to Tailte Éireann under what is called the Form 68 procedure. This is for uncontested rights of way which have been used without interruption, as of right, and without force for a continuous period – typically 12 years for private land.
It will require the person who claims to have a right of way to submit an affidavit which is a sworn statement giving an account of the use and history of the right of way. The affidavit is normally drafted by a solicitor and will have a map illustrating the route of the right of way. It will also have the name and address of the owners of the land over which the right of way is exercised. The right may be registered if no objections are raised (a notice is served on the landowner). If there’s an objection, you may be referred to the Circuit Court.
By court order: If there is a dispute or if the landowner does not agree, you can apply to the Circuit Court under Section 35 of the Land and Conveyancing Law Reform Act 2009. The court may declare that a right of way exists and direct that it be registered. This is often used when there is no formal deed and the prescriptive route is challenged.
Maintenance and upkeep: Generally there is no formal agreement regarding maintenance and upkeep of the right of way. The practice as to who or when maintenance is done tends to develop over time.
For roads that are not public roads, local authorities may, at their discretion, provide assistance through schemes like the Local Improvement Scheme (LIS). This scheme offers funding for improvement works on small roads and laneways in rural areas that are not maintained by local authorities but provide access to homes, farms, or amenities.
Extent of right of way: Generally, a deed of right of way, is binding on successors and assigns. This means if you sold land for a site for example, the new owner is also bound by the right of way. If the right of way is limited by scope to agricultural purposes only, it may not be sufficient to be used in order to access a site/dwelling. It is probably in everyone’s interest to give a right of way for at least agricultural and residential purposes.
Aisling Meehan, agricultural solicitors and tax consultants.
Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie
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