Easement for unauthorised development

CyrilMc

Hello,

I would be grateful for advice or guidance to find relevant information on the following:

A neighbouring dwelling has easement to access their property along my driveway. This is referred to as a burden in our deeds and names these individuals, 'and their licensees'. Approx. 15-20 years ago they developed a shed into a small house but no planning permission was arranged then, or planning to retain since. This house has been rented out since that time but has not been registered with the Residential Tenancies Board (I do not believe there is any qualification for exemption).

The tenants of this property also use my driveway and I have not disputed this, or hindered access at any time.

I am now wondering if those renting this house have a 'legal' right to this easement, given it is an unauthorised development and has not been appropriately registered as a rental property. A further question might be: Am I within my rights to deny access to these tenants until the house has been appropriately planned for and registered?

I have sought legal advice but the solicitor advised me that the only relevant point was they had continued usage for 12+ years. I understand his rationale but I struggle to understand why an unauthorised development (and possible illegal tenancy) should enjoy any legal right to access my property.

Thanks in advance for any guidance.

endofrainbow

Unfortunately the 12 year rule negates the need for planning permission. The time to object would have been when it was being converted.

Dav010

https://www.boards.ie/discussion/comment/121117029#Comment_121117029

Small point, but it’s 12 years if there was planning (7 years plus a few weeks from date of expiration of planning permission, plus the 5 years duration of pp), in the op’s case where there was no planning at all, it is 7 years. So op’s opportunity to object/draw the CoCo’s attention to the unauthorised development passed some time ago.

You would have to wonder what benefit the op would gain from preventing an occupant access to their home after 12 years, especially where there is an established legal access to it. Surely that would have legal as well as personal ramifications for the op, law of unintended consequences would surely apply.

CyrilMc

Thank you both for replies.

Dav010, I would not block access to somebody's home. There is a relatively high turnover of tenants and I am enquiring as to my options for the future - before tenancy has been established. I would think the benefit of reduced usage of my property by others should be fairly obvious. This easement has been abused in my opinion and for reasons I have not stated. There are other options for accessing this property that I would like the landlord to consider. I do realise that the optimal time to raise this has passed and am enquiring as to current standing.

Again, thanks for your information.

Dav010

https://www.boards.ie/discussion/comment/121117676#Comment_121117676

If the easement is established, surely there is no limit to the frequency with which it can be used?

Establishing a tenancy is not dependent on it being registered with the RTB, the tenant/LL has rights associated with a tenancy even if it is never registered.

Peregrinus

When a right of way or similar easement has been granted to the owners/occupiers of a neighbouring property, it's not generally specified in the grant that they can only exercise the right of way so long as their use of their own property is consistent with the planning legislation. And if it's not stated in the grant, I can't see the courts implying it.

(It might be different if, instead of maintaining a second residence without planning permission, they opened up a plant hire business and now you have a stream of trucks, JCBs and low loaders crossing your land. You could say that this is not the kind of use contemplated by the original grant and there'd bat at least a reasonable argument to be had about that.)

ittakestwo

An easement is a right of one piece of land over another. It is not a right of one person against another, this is a subtle but crucial difference.

When the easement was granted all the neighbours land would have the easement, therefore a right of way would exist to the other dwelling if it was built on the land your neighbour owned at the time of the grant.

However what your neighbour could not do is buy neighbouring land that was not granted the right of way and use the right of way to gain access to that land even if they go over his original land first to gain access to the new land.

Your solicitor has said 12 years because the new presciptive period for an easement is 12 years. So even if they had no deed but used something for the last 12 years, a right of way by prescription would exist. However i am not sure has this started. It was supose to start in 2021 but i thought it had delayed and the old period of 20 years for prescriptive periods still apply.

Donald Trump

https://www.boards.ie/discussion/comment/121142984#Comment_121142984

LCLRA 2009 was updated by LCLRA 2021 to effectively reinstate such prescriptive rights which would have otherwise expired (if not registered by then)

ittakestwo

https://www.boards.ie/discussion/comment/121143010#Comment_121143010

So if you haven't stopped using a prescriptive ROW then you can still apply under new law or old law if it still applies? However if you had stopped using a prescriptive ROW and one existed then you need/ed to have registered it by 2021. However I thought they deleyed this date as they expected a tsunami of disputes by people who still had not registered a ROW.

https://www.irishtimes.com/news/politics/planned-changes-to-rights-of-way-face-indefinite-delay-1.4679238

If you have an unregistered reserved or implied ROW you dont need to worry about the deadline as they only apply to prescriptive ROW's. You can still register a Reserved or implied ROW after the deadline for prescriptive ROW's

In the OP's case a prescriptive ROW would exist under the new rules of 12 years even if they have not registered it. Also it looks probable a reserved ROW exists even if they have not registered that either.

From the sounds of the OP has no right to block acccess and runs the risk of a court injuction they do.