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Improving the surface of a Right of Way

  • 22-09-2022 3:45pm
    #1
    Registered Users Posts: 20


    Hello,

    I am looking at a piece of land with a right of way into it. Its unused and impassable, and would need some maintenance, cutting back trees, etc, and improving the surface eg making it in a track that would take vehicle traffic. Its between two walls, so pretty well defined, just wondering what the legal stance here is on that?

    I presume the landowners has no obligations with respect to making it passable?



Comments

  • Registered Users Posts: 10,130 ✭✭✭✭Jim_Hodge


    You've made a huge presumption. You need to ask the landowner first.



  • Registered Users Posts: 2,344 ✭✭✭NUTLEY BOY


    Not legal advice - just a view on some of the issues arising ;

    Who, if anyone, owns or is bound by the "right of way" ?

    Is the right of way binding on successors in title to it ?

    Have you actually seen the right of way in documentary form ?

    What does the right of way actually provide and to whom ?

    Landowners adjacent to either side of the right of way - presumably the respective owners of the side walls - might have an obligation to maintain their respective sides of the right of way out to the midpoint.

    This topic is at the front of my mind as a neighbour had a similar issue recently. There is a shared driveway between two houses. Each neighbour is obliged to allow the other right of passage over their half of the laneway to access the rear of the properties and garages. Each neighbour is also obliged under the agreement to maintain and repair their side out to the mid-point.

    Curiously, there appears to be no actual owner of the laneway over which right of way exists.

    The big concern here is getting certainty of continuous access to the parcel of land OP is considering purchasing. There is alot of investigation to be done here before an intending purchaser would even think about proceeding. This is definitely an instance where the advice and services of a solicitor would seem to be imperative.

    Post edited by NUTLEY BOY on


  • Registered Users Posts: 20 ofearghp


    Thanks for the reply.

    Yes, the right of way exists in the land registry folios and it is well defined between two walls. It is owned by one landowner only, but is up against the boundary of their property. So, field -> wall -> ROW -> wall/boundary.

    I am not sure if is the ROW is binding on successors to title, but I would be sure to guarantee that before signing anything.

    Yes, I agree certainty of continuous access is key. The key point here is that the ROW is registered, but hasn't actually been used in a long time as to be practically impassable, at least with a vehicle.

    What's not clear to me is if you have a right of way, does that allow you to improve the surface, eg scrape and bring in stone, or to cut hedges/scrub that's in the way?



  • Registered Users Posts: 6,767 ✭✭✭Alkers


    I would tread very carefully, if the landowner intervenes in a genuine effort to improve access and someone slips/trips/falls and injures themselves, additional liability could have been generated by these interventions.

    Horrible situation but it has happened



  • Registered Users Posts: 18,768 ✭✭✭✭Del2005


    Have you talked to the owner of the fields which are beside the ROW? They may be willing to clear it or they can tell you who is responsible for clearing it.

    The most important bit is who's selling the land and why is the ROW not being used by them to access it.



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  • Registered Users Posts: 1,591 ✭✭✭ittakestwo


    If your ROW is being blocked by trees etc you have the right to clear it.


    You cant develop a ROW. So if the ROW always had a gravel surface for instance you can not change it to tarmacadam etc. You can repair a ROW tho. So if it did have a tarmacadam surface and that became covered with pot holes you can fix them.



  • Registered Users Posts: 20 ofearghp


    I have legal documents from the vendors now and its saying there is another access point which isn't a legal right of way. Its a Statutory Declaration in Relation to Established Easement, saying its in use for 60 years+. There's a locked gate with a shared key.

    Before i go to my solicitor, does that count for anything legally? Or would I be taking a gamble relying on it?



  • Registered Users Posts: 14,150 ✭✭✭✭callaway92


    Barking up a potentially very ugly tree here

    EDIT: Especially if you’re wanting access for hunting etc (just going by your created thread history)



  • Registered Users Posts: 1,417 ✭✭✭Glencarraig


    On a slightly different subject but close enough. I am looking at buying a house that is not attached to next door but the two garages shared a wall at some stage. Next door has demolished their garage to build an extension and has left access to the rear and what was the shared wall is now an exterior wall for the house I'm looking at. It appears that the side of the wall now exposed has simply been painted and no attempt made to insulate the wall on the outside. I have noticed black mould on the inside of the wall of the house I'm looking at, probably caused by the cold ingress. Question is, now that "next door" has detached their side by demolishing the garage, who now "owns" the former "shared" wall and would I be entitled to look for access to insulate the wall on "their" side?



  • Registered Users Posts: 6,083 ✭✭✭Claw Hammer


    If you have a right of way you are entitled to stake steps to make it usable and maintain surfaces, clear obstructions etc. If the right of way is registered it must be on foot of aa grant and so can't be lost through disuse.



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  • Registered Users Posts: 1,591 ✭✭✭ittakestwo


    If it is not stated in deeds the boundary is the midpoint of the shared wall.

    If that is the case then no you cant but insulation on the outside of the wall as that is on their side if the boundary.


    Why dont you dryLine the walls on the inside btw?



  • Registered Users Posts: 38,789 ✭✭✭✭Mellor


    The wall is still a shared wall. Ownership has nothing to do with being a "internal" or external wall. Exposing a party wall to the elements can have this issue, but it sounds like the exposed room is your (would be) garage. This should be outside the thermal envelope, ie you house should have separately insulated. Sounds like it may not be, which sounds like it's badly built.

    You'd have no right to access their property to maintain the insulate the wall. And even if you had access, you'd be encroaching their property if to you did insulated externally. Legally you can only internally insulate.

    This is not a legal issue, it's a construction issue. It's going to be very hard to thermally insulated this wall well. I'd be walking away.

    Guessing you probably read the OP and missed the recent post.

    If not, you cannot "maintain" the external face of a shared wall by insulating it. Clear and simple encroachment.



  • Registered Users Posts: 1,417 ✭✭✭Glencarraig


    If I bought the house I probably would but it means dismantling about 15ft of storage racking screwed to it at the moment!



  • Registered Users Posts: 6,083 ✭✭✭Claw Hammer


    You would be entitled to get a works order to maintain the wall so your workmen could enter the neighbours site and plaster it. it would not be practical to add external insulation on to the neighbours side but plastering would at least mitigate against damp ingress.

    Most neighbours will co-operate rather than force a case about a works order to court.



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