Land register rejects neighbours Right Of Way

ittakestwo · 22-08-2018 12:41PM #1

My neighbour claim to have a right of way over my driveway. My neighbours are a comercial building and were closed for 10 years prior to them buying in 2016. I bought in 2012 and there was nothing on my property title about a ROW. My neigbours claim they got the ROW from uninterrupted use by thier predessor in title for upwards of 40 years.

They went to register the ROW with the land register but it was rejected 3 times last year by the land register. The land register did not even inform me of the applications as they don't when they reject the application . Another neighbour informed of the applications when they were doing legal searchs in the area.

The land register won't tell me why they are being rejected and my neighbour won't tell me either but still claim to have a ROW even tho they can't register it.

Does anyone know is this common for the land register to reject ROW applications, and usually when they reject them 3 times would this indicate that there is no ROW.

BTW all other neigbours say it was not a right of way and they did not use my driveway tho they had a gate onto it. The building has two other entrance pionts.

seamus · 22-08-2018 12:58PM

Without knowing the reason for the rejection, it's hard to say; they may have been rejected on simple technicalities. So it doesn't mean there is no right-of-way.

Non-use of the gate does not mean any right-of-way is lost. The existence of the gate itself implies that the landowner still intends on using that land for entrance/exit and therefore a right of way does exist.

Relevant info here: https://www.independent.ie/business/farming/agri-business/legal-advice-does-my-neighbour-have-a-right-of-way-through-my-property-36097816.html

I think it would be worth engaging your own solicitor for advice.

ittakestwo · 22-08-2018 01:30PM

seamus wrote: »

Without knowing the reason for the rejection, it's hard to say; they may have been rejected on simple technicalities. So it doesn't mean there is no right-of-way.

Non-use of the gate does not mean any right-of-way is lost. The existence of the gate itself implies that the landowner still intends on using that land for entrance/exit and therefore a right of way does exist.

Relevant info here: https://www.independent.ie/business/farming/agri-business/legal-advice-does-my-neighbour-have-a-right-of-way-through-my-property-36097816.html

I think it would be worth engaging your own solicitor for advice.

I have got solicitor on it immediately when I found out about the applications and got a legal opinion too but we cant conclude much without seeing what evidence they are claiming the ROW (Affidavits from previous owners etc.) which they refuse to show.

They seem to have given up on applying to the land register. last application was over a year ago and dispute regarding it nearly a year old.

Squatter · 22-08-2018 01:33PM

Is the Land Registry subject to the Freedom of Information legislation?

If so, then why not slap in a FoI application regarding the matter - as the landowner you must have a right to know.

ittakestwo · 22-08-2018 01:37PM

Squatter wrote: »

Is the Land Registry subject to the Freedom of Information legislation?

If so, then why not slap in a FoI application regarding the matter - as the landowner you must have a right to know.

No, unfortunately not. When I asked they said the applicant is their client and so wont give out their information even tho it is related to my property.

In fact they don't even give the applicant the reason why they are rejecting them and expect them to find out the reason themselves.

nuac · 22-08-2018 01:57PM

Mod
Rights of way issues can be complicated. You will have to rely on your own solicitor,
Leaving this open for general comment subject to forum rule on legal advice.
It takes a brave lawyer to advise on right of way situations.
E.g. read the reports on the Lissadell case

ittakestwo · 22-08-2018 02:07PM

nuac wrote: »

Mod
Rights of way issues can be complicated. You will have to rely on your own solicitor,
Leaving this open for general comment subject to forum rule on legal advice.

The question I am really hoping to know is the significance of the Land register rejecting an application. If anyone was in a situation where the land register rejected an application, did you ever manage to get around it? or is it very strong sign that all applications are doomed once the land register have rejected your applications.

Squatter · 22-08-2018 02:08PM

Below is an interesting link about rights of way printed in the Farming Indo late last year. This bit caught my attention:-

"Under the new rules [which are due to come in in 2021] the person claiming the right of way over a neighbour's property may make an application to the PRAI on Form 5A, which is available on the PRAI website. The PRAI will then notify the owner of the property concerned and if there is no objection raised by the owner, the right of way will be registered."

https://www.independent.ie/business/farming/schemes/know-your-rights-how-to-establish-a-right-of-way-36315744.html

ittakestwo · 22-08-2018 02:15PM

Squatter wrote: »

Below is an interesting link about rights of way printed in the Farming Indo late last year. This bit caught my attention:-

"Under the new rules [which are due to come in in 2021] the person claiming the right of way over a neighbour's property may make an application to the PRAI on Form 5A, which is available on the PRAI website. The PRAI will then notify the owner of the property concerned and if there is no objection raised by the owner, the right of way will be registered."

https://www.independent.ie/business/farming/schemes/know-your-rights-how-to-establish-a-right-of-way-36315744.html

They will notify the owner if they accept the application, and then give the owner a chance to rebutt it in which case it will go in front of a judge in court.

But if they don't except it (Ie don't think its a ROW) they just reject it and don't notify the owner that an application was made against their property.

They don't even keep a copy of anything submitted when they reject. They just send all the application back to the applicants solicitor. They will keep a record that an application was made tho.

Squatter · 22-08-2018 02:20PM

ittakestwo wrote: »

They will notify the owner if they accept the application, and then give them a chance to rebutt it in which case if the landowner does it will go in front of a judge for them to decide

But if they don't eaccept it (Ie don't think its a ROW) they just reject it and don't notify the owner that an application was made against their property.

They don't even keep a copy of anything submitted when they reject. They just send all the application back to the applicants solicitor. They will keep a record that an application was made tho.

But that's under the existing rules. And your neighbour has already failed 3 times using them!

The new rules seem to say is that he won't be able to go behind your back to the Land Registry in future - so at least you'll have a chance to object.

As a matter of interest is your driveway open all the time or do you have a gate that you close from time to time?

ittakestwo · 22-08-2018 02:25PM

Squatter wrote: »

But that's under the existing rules. And your neighbour has already failed 3 times using them!

The new rules seem to say is that he won't be able to go behind your back to the Land Registry in future - so at least you'll have a chance to object.

As a matter of interest is your driveway open all the time or do you have a gate that you close from time to time?

Great, seems fairer,

Yes to make things interesting I had a locked gate on the driveway which they removed when the dispute started last year as it said it blocked their ROW. The gate had been there nearly 40 years too. We have asked them to put it back but they wont, and say if I put it back they will blow me out of the water.... They are very wealthy.....

endacl · 22-08-2018 02:30PM

Are they actively using this supposed ROW?

jimbev · 22-08-2018 02:32PM

In there view what is the right of way for

ittakestwo · 22-08-2018 02:38PM

endacl wrote: »

Are they actively using this supposed ROW?

Yes, They bring bins out once a week and use it as a fire exit route. But the previous owners did not bring bins out over it.

TBH I was just hoping to gauge the significance of the land register rejecting the applications. Hoping to take it as a sign that they cant register it so does not exist.

ittakestwo · 22-08-2018 02:38PM

jimbev wrote: »

In there view what is the right of way for

All purposes I believe

seamus · 22-08-2018 02:44PM

ittakestwo wrote: »

Yes, They bring bins out once a week and use it as a fire exit route. But the previous owners did not bring bins out over it.

TBH I was just hoping to gauge the significance of the land register rejecting the applications. Hoping to take it as a sign that they cant register it so does not exist.

None, basically. The land register route is something of a shortcut, like the small claims court. It may be the case that they rejected the first application, and their own rules are to then automatically reject any subsequent applications.

They can still go through a normal court process to try and have the ROW legally established.

It sounds like what they're trying to do now is bully you into accepting the situation and save themselves the trip to court.

Follow whatever advice your solicitor provides.

jimbev · 22-08-2018 02:48PM

Would you be able to upload a sketch to show the lay of the land

Mod

Sketch ok, but be careful not to identify the place. This is an anonymous forum.

Victor · 22-08-2018 09:32PM

seamus wrote: »

Non-use of the gate does not mean any right-of-way is lost.

Aren't there specific rules on this, that after a specific time the right of way lapses?

Iodine1 · 22-08-2018 09:50PM

ittakestwo wrote: »

Yes, They bring bins out once a week and use it as a fire exit route. But the previous owners did not bring bins out over it.

TBH I was just hoping to gauge the significance of the land register rejecting the applications. Hoping to take it as a sign that they cant register it so does not exist.

By using it and you allowing it to continue unchallenged I think they could be establishing a ROW, even where it didnt exist before. I would be closing that back enterance immediately.

Glass fused light · 22-08-2018 09:56PM

ittakestwo wrote: »

Great, seems fairer,

Yes to make things interesting I had a locked gate on the driveway which they removed when the dispute started last year as it said it blocked their ROW. The gate had been there nearly 40 years too. We have asked them to put it back but they wont, and say if I put it back they will blow me out of the water.... They are very wealthy.....

If the gate was your property and on your property they had no legal right to remove it, and their actions move into the trespass to commit criminal damage arena. They can go to court to enforce the ROW if they think they have a case. The 'cheap' way to make them pony up with proof of a ROW is to block off access between your property and theirs with something which is difficult to move. And get a camera pointed at the property line and a no trespass sign. And Gardai involvement if they move the blockage. This will escalate depending on the character of the individual's involved, and you need to judge for yourself if it is worth the stress.
But before you do anything, can you locate the former owners of your property or family who may be able to confirm prior usage and why the access route was opened?

endacl · 22-08-2018 11:23PM

Bullys only bully because it works.

ittakestwo · 23-08-2018 07:53AM

Glass fused light wrote: »

If the gate was your property and on your property they had no legal right to remove it, and their actions move into the trespass to commit criminal damage arena. They can go to court to enforce the ROW if they think they have a case. The 'cheap' way to make them pony up with proof of a ROW is to block off access between your property and theirs with something which is difficult to move. And get a camera pointed at the property line and a no trespass sign. And Gardai involvement if they move the blockage. This will escalate depending on the character of the individual's involved, and you need to judge for yourself if it is worth the stress.
But before you do anything, can you locate the former owners of your property or family who may be able to confirm prior usage and why the access route was opened?

That is what I was advised. But courts closed till October so won't be doing anything till then as I expect them to injuct me as soon as gates go back.

The former owners of the driveway did not live there and did not know they were using it and signed something to that effect when I bought. Other neighbours say they did not use it at all apart from a fire exit route. but there was never actually a fire in the building that led to an evacuation . It is a very built up area and impossible for someone to be using it regularly without neigbours knowing as located at end of a narrow cul de sac.

When I bought 6 years ago I tried to find out who owned the building but could not. None of the neigbours even knew who they were. It was a derelict building for the first 4 years of my ownership with no one was using it until l the new owners 2 years ago bought it and revamped it and opened it to the public .

I never even knew you could buy something with a claimed right that was not established on the property title. seems a bit foolish the law allows this situation to occur.

seamus · 23-08-2018 08:31AM

Victor wrote: »

Aren't there specific rules on this, that after a specific time the right of way lapses?

It has to be "abandoned" rather than just not used.

And surprise surprise there's no firm definition of same.

The link from the Indo above cites a case where the ROW hadn't been in used for nearly 40 years, but the judge deemed that insufficient to declare the ROW lost.
However, a vegetable garden had been established in its place, and that indicated abandonment, and thus the ROW was lost.

I guess "abandoned" probably means that the ROW has not been in use and it can be demonstrated that the landowner no longer intended to use it - probably by removing their access to it or making it practically impossible to use. Simply not using it wouldn't be enough.

I've heard of cases where abandonment has been declared where brambles and such were allowed to grow over the ROW to the extent that it was functionally impossible to use.

ittakestwo · 23-08-2018 08:38AM

seamus wrote: »

It has to be "abandoned" rather than just not used.

And surprise surprise there's no firm definition of same.

The link from the Indo above cites a case where the ROW hadn't been in used for nearly 40 years, but the judge deemed that insufficient to declare the ROW lost.
However, a vegetable garden had been established in its place, and that indicated abandonment, and thus the ROW was lost.

Where its proven a right was established it is very hard to show abandonment, Non user does not show abandonment of a right. You have to show the user did something that they intended never to use the right again, like building over a ROW etc.

I would be better claiming there was never a right there to begin with than say there was a right and that they abandoned it.

Glass fused light · 23-08-2018 08:56AM

It would be worth while going in to the planning section of the council and looking at the planning files for both properties and adjoining properties. If the files are very old you would have to pay a fee to get them from storage but it may give you a better understanding of how the properties were developed and if they were originally from a common plot/owner etc. Getting documented proof back to the original builder/owner on the ROW for your property could be possible with a lot of leg work and luck.
Also look for the history and ownership of the building, and read up on commercial premises fire regs as if it's a fire exit/entrance and there has been no fire it can be 'in use' once the building exists.

Edit The land registry will have the owners, the old and the new, if its a company the company register office CRO.ie will give details of the company and directors and any linked companies the directors are connected with.

BarryD2 · 23-08-2018 09:12AM

seamus wrote: »

I've heard of cases where abandonment has been declared where brambles and such were allowed to grow over the ROW to the extent that it was functionally impossible to use.

Not related to case in hand, but above seems to be common enough practice among landowners seeking to close up 'traditional' rights of way, old boreens etc. Block it up a bit and it doesn't take long for nature to take it's course and bingo they extinguish any practical use and eventually legal use. We have a very poor record in this country as regards protecting these, which will be much to the loss of society as the years go by.

ittakestwo · 23-08-2018 09:17AM

Glass fused light wrote: »

It would be worth while going in to the planning section of the council and looking at the planning files for both properties and adjoining properties. If the files are very old you would have to pay a fee to get them from storage but it may give you a better understanding of how the properties were developed and if they were originally from a common plot/owner etc. Getting documented proof back to the original builder/owner on the ROW for your property could be possible with a lot of leg work and luck.
Also look for the history and ownership of the building, and read up on commercial premises fire regs as if it's a fire exit/entrance and there has been no fire it can be 'in use' once the building exists.

Edit The land registry will have the owners, the old and the new, if its a company the company register office CRO.ie will give details of the company and directors and any linked companies the directors are connected with.

Thanks I did this,

They put a planning permission in 10 years ago to change it to a gym/fitness centre with 5 apartments above it and all accessed from my driveway. They claimed in the planning permission they had a full unrestricted right of way over the driveway (tho they referred to it as a laneway). Most of my neighbors objected, 4 neighbors claimed it was not a ROW and that they only used it as a fire exit and the 1 other claimed they had no legal right to it. All these neighbors have lived here 40+years. The council granted it but the neighbors appealed it to An Bord Pleanala on the same grounds but still it was granted. The applicant was a company that went into NAMA by the time I had bought here.

I see what you say about the fire exit still being used when the building was, but there was never any signage that it was being used as a fire exit. I believe the landowner needs to have some constructive knowledge that they are being used as a right or else they cant object to it.

mickdw · 23-08-2018 09:30AM

ittakestwo wrote: »

Thanks I did this,

They put a planning permission in 10 years ago to change it to a gym/fitness centre with 5 apartments above it and all accessed from my driveway. They claimed in the planning permission they had a full unrestricted right of way over the driveway (tho they referred to it as a laneway). Most of my neighbors objected, 4 neighbors claimed it was not a ROW and that they only used it as a fire exit and the 1 other claimed they had no legal right to it. All these neighbors have lived here 40+years. The council granted it but the neighbors appealed it to An Bord Pleanala on the same grounds but still it was granted. The applicant was a company that went into NAMA by the time I had bought here.

I see what you say about the fire exit still being used when the building was, but there was never any signage that it was being used as a fire exit. I believe the landowner needs to have some constructive knowledge that they are being used as a right or else they cant object to it.

Planning department won't get into disputes over ownership as it really doesn't matter. If they obtain permission over lands they don't own, they basically don't have permission at all unless they can gain use of the lands.
I'd solidly block the gate, make them then do the running. If they are a wealthy business and depend on this to meet fire regs, they may be in a position to pay a reasonable sum to you. Common sense would say it's going to be cheaper that going to court.

Glass fused light · 23-08-2018 09:31AM

ittakestwo wrote: »

Thanks I did this,

They put a planning permission in 10 years ago to change it to a gym/fitness centre with 5 apartments above it and all accessed from my driveway. They claimed in the planning permission they had a full unrestricted right of way over the driveway (tho they referred to it as a laneway). Most of my neighbors objected, 4 neighbors claimed it was not a ROW and that they only used it as a fire exit and the 1 other claimed they had no legal right to it. All these neighbors have lived here 40+years. The council granted it but the neighbors appealed it to An Bord Pleanala on the same grounds but still it was granted. The applicant was a company that went into NAMA by the time I had bought here.

I see what you say about the fire exit still being used when the building was, but there was never any signage that it was being used as a fire exit. I believe the landowner needs to have some constructive knowledge that they are being used as a right or else they cant object to it.

Did the owner at the time become involved with the objection as it likely they have documentation.
Have you looked at the ABP file as they should have received something to support the ROW from the Developer.

Victor · 23-08-2018 10:31AM

mickdw wrote: »

Planning department won't get into disputes over ownership as it really doesn't matter.

You need to own land or have the permission of the owner to apply for planning permission.

ittakestwo · 23-08-2018 11:33AM

Victor wrote: »

You need to own land or have the permission of the owner to apply for planning permission.

The planners asked them for a solicitors letter stating a ROW as the neighbors objections were disputing it and the ROW formed a crucial part of the planning permission. They did submit a solicitors letter saying they were using it for 40 years.

The planners put a disclaimer on the planning grant saying they will make a presumption that the applicants had the legal right to use it but they could not refer to the planning decision as a right that they could use it.... ie they cant say they have a legal right of way as DCC gave them a planning grant.

Land register rejects neighbours Right Of Way

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