right of way

westwicklow

can anyone tell me what is a "right of way" please and how they come into existance etc?

Victor

A right of way is the legal right to cross and re-cross over land, without gaining any ownership of the land. Typically, one neighbour is allowed cross anothers and this eventually becomes a rights (after 20 years).

A right of way can either be:
Private - limited to one person (and possible their associates)
Public - open to all.

Rights of way need to be used to keep them in existance.

westwicklow

must it be in daily use?

Our man in Havana

Nope. Once a year would be enough.

westwicklow

Are written records available of existing right of ways?

stepinnman

That will depend on whether or not the land has been sold/transferred/Leased etc since the right of way came into existnece. If it has it may be that a written record of the right of way has been recorded in the appropriate deed of transfer. It doesn't have to be written down though to have legal effect as long as the criteria as outlined in an earlier post are complied with and the right is still being exercised on a relatively regular basis then it will persist

westwicklow

Would the burden of proof regarding frequency of usage lie with the "granter" of a right of way or with the "user/claimant"?

dermot_sheehan

Frequency of use is irrelevant, if it is by expressed grant. The landowner over which it passes will have to show abandonment to defeat it which non use is nearly impossible to show (a right of way is not merely abandoned by non use, the landowner would have to show that the predecessors in title of the right of way holder which manifestly indicated an intention to abandon it such as bricking up a passageway).

If the right of way is acquired by prescription (i.e. continuous use for a period of 20 years without objection), it is for the person alleging the prescription to show use.