Right of Way

Gumbyman2000

Howdy,

Can rights of ways be established in Ireland by common usage?

For example, If two people (A&B) built a pier on a lake off person A's land ten years ago and person B always had access to the pier through Person A's land, is this an established right of way? If another person, C, were to buy person B's land (along with his share in the pier) are they entitled to access? Would they need to put some formal agreement in place and/or make up some sort of deed to the pier?

Thanks,
Gumby.

Tom Young

The simple answer is yes, the devil of course is in the detail.

FreudianSlippers

Certain characteristics must exist:
1) There must be a user of the right (Dominant and servient tenement that are different people. Easement must accommodate Dominant tenemnt)
2) Use of the right must be continuous and not intermittent
3) The use must be capable of forming the subject matter of a grant

Easements can be acquired by common law, statute or lost modern grant.

nuac

Have always found right of way problems difficult. Firstly hard to establish the true facts and then the law is difficult.

the Lissadell case Walsh v Sligo CC has run for over 40 days before Judge McMahon, and legal submissions to follow next term afaik. Judge McMahon's judgement either way will be very interesting. I don't think any of the present Supreme Court would lightly differ from his conclusions. After all the man started his career as a solicitor!.

Gumbyman2000

Hi all,

Thank you all very much for the replies. Very much appreaciated.

Since there is no legal agreement between A and B at the moment what would be the simplest and least intrusive thing to draft up between them? I assume that C should get something in writing about his right of access and ownership before the purchase goes ahead thereby avoiding any future legal wranglings where he will be on the back foot?

I should add the assumption is that A and B are on good terms and there is no current dispute over the right of access or ownership of pier. This is all for the benefit of C. I guess the problem is that if A (the landowner) has to put something in writing giving rights over his land this may give him a headache or cause reluctance. The simpler the better!

Thanks again,
Gumby.

PS If use of the right must be continuous would this mean that if B used the right during Summer months (his property is a holiday home) this wouldn't count?

FreudianSlippers

I'm no pro on this but I believe there is a difference depending on whether it is registered land or not. Best bet is to get the parties together and see a solicitor.
While everyone gets along now, remember easements carry on... and you don't know what will happen down the road.
Also, it's important that easements need to benefit the land, not necessarily the current owner of that land.

Gumbyman2000

Hi,

Thanks again all. Just another question: would it be uncommon and unreasonable for person C to insist that an agreement is in place before purchasing?

Cheers!

FreudianSlippers

This is the point where you should certainly see a solicitor. No one is going to answer that question unfortunately - that would be giving advice and would be dangerous for everyone, especially you.

Gumbyman2000

Point taken and will do! Cheers.