Right of way claim - can anyone help?

Yorky

The new owner of land adjoining a residential estate is claiming a right of way through the estate in order to access the land. If there is a right of way it hasn't been in use for at least ten years and there is a fence in place with no opening. I understand a new easement could have granted with the conveyance.

The residents have requested proof of the right of way via legal documentation but the owner is refusing to provide this before opening up the fence. We've managed to delay this so far by calling the Gardai to report a potential criminal damage offence.

The owner has said he will send right of way proof to our solicitor but is going to go ahead with the opening in the meantime.

The new owner hasn't made a further attempt to open up the fence since the Gardai arrived but apparently he has informally satisfied them he has a right of way. One of the residents is parking his car in front of the fence in the meantime.

We are considering erecting a warning sign to the effect of the gardai being called if there's any attempt to open the fence until proof has been shown to our solicitor (we don't have a solicitor yet and have little funds to finance one!). We've also talked about planting shrubs in front of the fence, which should be there already as part of the landscaping planning requirement.

Any advice/ suggestions on how to prevent an opening being created in the interim such as signage wording et al would be greatly appreciated.

Thanks in advance.

Pat Mustard

Get a solicitor to check his title. Also ask the solicitor to check what rights of way that this man may have. The solicitor may want to take up a copy of the deeds to one of your houses, to see if the Booklet of Title that accompanied the deeds will disclose any right of way in favour of the land now owned by this new owner.

Find out whether your estate has been taken into the charge of the local authority. This is probably going to be one for your solicitor but perhaps you may be able to handle this yourself.

Also check to see if this new owner has planning permission to open up a new entrance.

I would also take photos of what the place looks like now. That way, you will have that evidence if the fence gets knocked. By all means, call the Gardai if the fence gets knocked but without a solicitor's letter to them outlining who has rights to what, it will be very difficult for them to intervene.

I think you should consider checking these things before you commit to any course of action on planting trees or otherwise.

Overall, see a solicitor sooner rather than later.

Yorky

Thanks for your reply. We have good reason to suspect the new owner has a hidden agenda due to the estate's history - I didn't post this initially as it would've made for such a long post!

Some background:


The estate is completed and will soon be taken in charge by the local authority. The developer of the estate is in liquidation so the estate road and public open space is owned by the liquidator.

During the course of construction of the estate, the developer purchased the adjoining field and went on to vary the estate layout - without permission - to facilitate future development of the newly acquired land. They subsequently applied for Retention permission for the unauthorised development and we, as residents, made submissions to the planning authority requesting certain conditions to be imposed in the event of permission being granted.

Retention permission was granted subject to several conditions, the most important to us being no further residential development being allowed access from the pre-existing estate road.

The building boom ended and the developer went bust so they didn't get chance to develop the land anyway.

It has also been rezoned.

Fast forward to today, the liquidator has just sold the field and the first we knew about it was when workmen arrived to open up the fence, which separates the estate road from the field. Some of the residents took issue with the workmen and they downed tools. I spoke to the new owner and he said he wanted to " put a few cattle in the field - for now". The workmen told us the new owner is a developer not a farmer and he's from the same area as the previous developers so we strongly suspect he is a front for them.

The land is effectively landlocked with the only potential access being through our estate and we consider the opening up of the fence being the first step towards future development, notwithstanding the current zoning and planning conditions.

We're all quite worried about this and feel powerless to stop them, despite them not producing any evidence of ownership or right of way.

Should we just consult a solicitor now? Do you know how much it would cost for a legal opinion?

Thanks again for your interest so far - we'd greatly appreciate any further advice / suggestions.

Yorky

Also, would planning permission be required to open a fence
for agricultural access?

Pat Mustard

Yorky wrote: »

I spoke to the new owner and he said he wanted to " put a few cattle in the field - for now". The workmen told us the new owner is a developer not a farmer and he's from the same area as the previous developers so we strongly suspect he is a front for them.

One would have to wonder whether he intends to herd cattle through your estate in order to reach his property.

Yorky wrote: »

The land is effectively landlocked with the only potential access being through our estate and we consider the opening up of the fence being the first step towards future development, notwithstanding the current zoning and planning conditions.

We're all quite worried about this and feel powerless to stop them, despite them not producing any evidence of ownership or right of way.

Ask them for the evidence. Or better again, let your solicitor do it.

Yorky wrote: »

Should we just consult a solicitor now? Do you know how much it would cost for a legal opinion?

Not without looking at the papers. However, if the property is all registered land, it should not be very expensive to take up copies of the relevant folios and maps, which information would be very informative.

There is no point in me trying to guess beyond that.

Yorky

Pat Mustard wrote: »

One would have to wonder whether he intends to herd cattle through your estate in order to reach his property.

A cattle truck anyway

Pat Mustard wrote: »

Ask them for the evidence. Or better again, let your solicitor do it.

Yes we'll get on to this



Would the new owner need planning permission to open up the fence?

Pat Mustard

Yorky wrote: »

Would the new owner need planning permission to open up the fence?

I don't know and it would be legal advice in the context of your circumstances even if knew, so I couldn't really answer anyway - see forum charter.

But you could check the planning regs and see if you can find the answer.

Yorky wrote: »

Should we just consult a solicitor now?

Yes.

the_syco

Yorky wrote: »

Retention permission was granted subject to several conditions, the most important to us being no further residential development being allowed access from the pre-existing estate road.

Have your solicitor look into this, to ensure he's not trying to get around this, so he can claim ignorance at a later date.

Carawaystick

Are you allowed drove cattle along a RoW?

Pat Mustard

Carawaystick wrote: »

Are you allowed drove cattle along a RoW?

Depends on what rights were granted with the right of way.

Some ROWs are specified to be for all purposes and for use at all times, at any time of the day or night, with or without animals, on foot or with or wihout vehicles, with or without machinery, etc. etc. etc.

If a Deed of grant of ROW has been drafted by a solicitor, then it is likely to be drafted with a very broad scope.

Mr. Incognito

I'm sorry but legal rights of way are a minefield and you need to consult a solicitor.

This isnt one for an online forum.

Gen.Zhukov

There may be something shown up on this site https://www.landdirect.ie/index.html#

Proceed as guest and zoom in on the area you want. Burdens, ie right of way, are shown in yellow. Try clicking on the yellow highlighted bit (if there is one)

wazzoraybelle

I would look into whether alternative access is available into the field. It could be an important consideration. If the field owner is determined to put his cattle into the field through your estate in the short term, a letter granting him temporary permission to do so might be prudent and would not amount to a recognition of a right of way.

I'm not a solicitor, but have been dealing with our own right of way issues for several years. My view is that the courts are slow to change the status quo but also that land needs to be accessible.

There will be considerably more right of way issues arising over the next few years as the implementation of a new law in 2019 (I think, or maybe 2021) will result in the loss of any rights of way that are not expressed (i.e. written down). It would be to your benefit, again in my view, to take things slowly.

Of course, you need a solicitor, is there a family member of one of the residents of the estate who is a solicitor who can advise you?

Pat Mustard

wazzoraybelle wrote: »

If the field owner is determined to put his cattle into the field through your estate in the short term, a letter granting him temporary permission to do so might be prudent and would not amount to a recognition of a right of way.

It is unsafe to offer advice such as this, in the absence of all of the relevant facts.

This thread will be closed now.