Court case for right of way if contested

Diarmuid

My family are selling a house which was built by my father over 30 years ago. It was build off a road which, even though maintained by the local council, it turns out was not a public road. The use and access to the house was via this road and has been uncontested for those 30 years

This has all become apparent since we have tried to sell it.

Now in trying to get formal right of way, the initial approach was to get it by agreement with the owner of the right of way. However this neighbour (owner of right of which for ~5 years) has seen an opportunity for some easy money and is request a very substantial amount to agree to this

So our options are
1. Pay the money
2. Apply through the PRA for a right of way via prescription

If the owner contests 2, then it will have to be challenged in the court. My question is
1. What sort of time frame is usually required to resolve this issue through the courts?
2. What sort of cost to pursue this in court?
3. What are the chances of establishing this in court in our favour?
4. Are costs ever awarded against the challenger in these cases?


Any thoughts on this? If question 3 contravenes the charter then please don't answer...

nuac

Mod
Leaving open for general discussion, subject to forum rule against legal advice.

drunkmonkey

What's very substantial, cost about 4k for us to get a leeway to access our septic tank as it's outside the wall, had to be done when we were buying the house, seller had to pay for it.
Had another problem with a access to out back on a different property ended up buying the property and renting it out.

Don't think you've any easy way out of this besides haggling down the owner to get access.
I

Diarmuid

drunkmonkey wrote: »

What's very substantial, cost about 4k for us to get a leeway to access our septic tank as it's outside the wall, had to be done when we were buying the house, seller had to pay for it.
Had another problem with a access to out back on a different property ended up buying the property and renting it out.

Don't think you've any easy way out of this besides haggling down the owner to get access.
I

10k. That's ~7% of the sale price

PGE1970

€10k is his opening offer. Offer him half.

It will take forever to go through the PRA particularly if he resists your application. It will take as much in legal & mapping fees (even if you are successful) and you'll lose the current purchaser.

Plus, of course, discuss with your solicitor who should know more!!

drunkmonkey

Cash deal 2k, get him to sign the paperwork.

Diarmuid

There's been a bit of over and back on that and initial attempts have not been very successful.

Mod

You do realise that this is a public forum.?

Victor

Diarmuid wrote: »

It was build off a road which, even though maintained by the local council, it turns out was not a public road.

It would depend on the niceties, but doesn't any act or maintenance by the council bring a road under the category 'in the change of the council'.

Diarmuid

Victor wrote: »

It would depend on the niceties, but doesn't any act or maintenance by the council bring a road under the category 'in the change of the council'.

Apparently not. Which is why it got to this point. Road was always maintained by them, hence the assumption was that they had it taken in charge.

Peregrinus

Victor wrote: »

It would depend on the niceties, but doesn't any act or maintenance by the council bring a road under the category 'in the change of the council'.

No. There's a formal process for taking-in-charge. If the council hasn't gone through the process, the road's not in charge.

Mr. Incognito

This is blatant legal advice- contact your solicitor.

jimmycrackcorm

You should apply for the PRA anyway as theres an extension of the time limit until 2021.

You need to get advice from your solicitor re costs and timeframe. Then it's basically down to what it is worth trying to settle with land owner to get it sorted ASAP.

The ball is in the land owners court as he can simply hold out until court and even then he could simply not contest it or settle then.

Presumably this has been the only access to the house over the years.

Diarmuid

Thanks. Yes the only access to the house and to 5 other houses. The right way owner acquired it recently so I suspect the previous owner granted right of way by agreement to other neighbours who may have sold in the past

Are the other neighbours in the same boat?

Diarmuid

Yes. They just don't know it yet, or at least are not aware of the implications I'd imagine. I'll be informing them once we are done but not before.

longgonesilver

Would it be possible to get the council to take the road in charge, this would solve the issue for all the houses, and regularise the situation for the council.

brian_t

Diarmuid wrote: »

Yes. They just don't know it yet, or at least are not aware of the implications I'd imagine. I'll be informing them once we are done but not before.

There are 6 houses involved. Would it not be better to deal with this as a group action rather then the 6 owners trying to negotiate individually.

What do you think is the advantage of going at this alone and not involving the others.

Tiercel Dave

Diarmuid wrote: »

....... I'll be informing them once we are done but not before.

But why not inform them now, pay for the 'Right of Way' as a group or pressure the local council to take it in charge, again as a group! Otherwise this neighbour will get a nice little payout from each house and I'm sure owners won't thank you for that.
And what will happen if you don't agree to pay, will he block the access to all six houses?.....

Diarmuid

Tiercel Dave wrote: »

But why not inform them now, pay for the 'Right of Way' as a group or pressure the local council to take it in charge, again as a group! Otherwise this neighbour will get a nice little payout from each house and I'm sure owners won't thank you for that.
And what will happen if you don't agree to pay, will he block the access to all six houses?.....

1 Easier said than done
2 No right of way, no mortgage drawn-down, no sale.

I would like to help out the other neighbours but they are not my priority

Kristopherus

Diarmuid wrote: »

1 Easier said than done
2 No right of way, no mortgage drawn-down, no sale.

I would like to help out the other neighbours but they are not my priority

Are'nt you being a bit selfish with that attitude. As others have posted, your best option by far is to approach the council as a group. And it may also help if you(group) acquire the assistance of a local councillor as well.

Diarmuid

Kristopherus wrote: »

Are'nt you being a bit selfish with that attitude. As others have posted, your best option by far is to approach the council as a group. And it may also help if you(group) acquire the assistance of a local councillor as well.

I disagree the best option is to approach as a group. For starters other neighbours have to live with the right-of-way owner, so will be more reluctant to join my crusade. Secondly, they are not in a hurry to establish right of way so they can easily go the PRA route (and likely to be successful). Thirdly, it might put the right-of-way owner in defensive position, where they take up an even more belligerent position. Finally, why would the council want to take the road in charge. It's been like this for 30 years, so why change now.

I think most reasonable people wouldn't call it selfish to admit that closing the sale is the priority..

brian_t

Diarmuid wrote: »

For starters other neighbours have to live with the right-of-way owner, so will be more reluctant to join my crusade.

The right-of-way owner has to live with them so he might be more accommodating.

Victor

Diarmuid wrote: »

Finally, why would the council want to take the road in charge. It's been like this for 30 years, so why change now.

I understand there is a plebiscite procedure that can force the council's hand.

nuac

local Authorities are often reluctant to join in right of way litigation.

Can be hard to establish all relevant facts.

E.g. Sligo County Council's action re Lissadell estate