My home has rear access to my garage via a laneway. I have a right of way over the laneway shown in my title documentation, and I use this frequently for access. The laneway is registered with the Property Registration Authority [PRA], with rights of way listed for several adjoining homeowners. My home is not registered with the PRA and is presumably covered by the Registry of Deeds. I saw that there was a deadline of November 30th, 2021 to register rights of way, and after reading everything I can find, I am uncertain as to whether this applies to my situation. Can I rely on my existing title documentation, or do I need to pay a professional to register my right of way in order to preserve it?
Patrick Shine writes: The short answer is yes, you can rely on your existing title documentation.
It is understandable that you are concerned about your right of way as there has been significant commentary and some concern in relation to rights of way in recent years.
Rights of way and other rights such as wayleaves for services, etc., are easements and are generally described under the heading of easements in legislation and relevant documents.
The recent concerns relate to the second of the following two categories of easements:
(1) Easements that are formally documented by way of deed or agreement. These may, or may not, be registered with the PRA, ie, the Land Registry.
(2) Easements that have been established by long use only, without any written agreement. These are known as “easements by prescription”.
The recent concern relates to legislation passed in 2009, and amending legislation in 2011, which contained a requirement that easements by prescription be registered with the PRA. The deadline for applications for registration was November 30th, 2021. However, to the relief of many beneficiaries of easements by prescription, this requirement has now been removed by the provisions of the recently enacted Land and Conveyancing Law Reform Act, 2021.
In your case, your right of way is included in your title deeds, ie, category (1) as described above. Therefore, its existence had not been put at risk, or affected by the requirement that was in place prior the 2021 Act referred to above.
However, I suggest that you have a discussion with your solicitor about protecting your right of way and to advise if it can be registered as a burden of the folio on which the laneway is registered, and also to discuss the advantages of registering your own property. Easements, including rights of way, are frequently subject to different interpretations in relation to how they are permitted to be used.
For instance, a change in ownership of the registered title in the laneway may result in a more restrictive interpretation, by the new owner, of how you and others are permitted to use it. Your solicitor will check your title deeds and will advise you in relation to the precise nature of your rights, and in relation to registration.
One of the advantages of having your title interests registered is that folios and relevant file plans, (ie, Land Registry maps) are available to the public. Your solicitor will advise if your right of way can be registered as an appurtenant on your folio if you decide to register your title. If registered as a burden and/or an appurtenant on the respective folio/s, it means that in the event of any issues arising that may concern the use of the laneway, such as obstructions, maintenance, etc, other relevant parties will be aware of your rights.
In summary, the requirements in place prior to the 2021 legislation, did not concern your situation. You can rely on your title documentation, and as stated, your solicitor will advise you on the best way to protect your right of way in the future.
