pathway features

We have already written on this blog on the topic of registration of rights of way.    See our link here http://hcalaw.ie/rights-of-way-over-land-registration-and-long-use/

However, to be able to register a right of way, it is important to ensure that you have been continuously using your right of way.  That leads one to the question, can I lose my right of way?  Put another way, how often must I use my right of way to be deemed to be “continuously” using the right of way.  The law states that one must have at least 20 years continuous use, or 12 years continuous use from 1 November 2009. Use by those who previously owned the land can count.  But what is the situation if you haven’t used the right of way for a number of years.  Can you then lose the right?

For one to lose a right of way, there must be shown an intention to abandon a right of way.  It

Blocked rights of way must be dealt with

Blocked rights of way must be dealt with

is not sufficient to just stop using it in order for it to be extinguished.  It is a question of evidence.  Obviously if a wall has been built or the right of way is otherwise blocked this may be evidence that there was an intention to abandon. The use of the right of way must be continuous but this is interpreted reasonably and it doesn’t seem as if its yearly use is required.A new piece of legislation dealing with land law was introduced in 2009.  An item of that new law states that  a period of 12 years non use will result in extinguishment of the right of way.

There is certain case law which indicates that if the right of way is interrupted (say by an obstruction) and the person exercising the right does not object within one year then it may be difficult to show the right of way being acquired by continous use.  However, this must be viewed in the context of other rules mentioned above concerning intention to abandon, and all other surrounding  facts of a case.

If at all possible, our recommendation in cases where rights have not be exercised for a period of time, is for those rights to be exercised as soon as possible.  Even, if the use of the right of way, is just once a year we still encourage clients to exercise these rights.

For more information on this topic, contact any of the solicitors in our office, in particular, Emmet McCann or Colm Kelly on emccann@hcalaw.ie or ckelly@hcalaw.ie