I have been using a right of way on my neighbor’s land to access part of my farmland for at least 20 years.
My dad and grandfather used it before to access the same part of the farm. There was never a problem until I heard about that deadline to register. The man who owned the right-of-way route was a gentleman and over the years we have always helped each other if the silage needed to be covered or whatever needed to be done, but this man passed away seven years ago and his son owns the land now and he’s not that neighbor.
I am aware of the right of way registration deadline and want to get a loan in time to build a new milking parlor and would like to have it registered. What would you advise?
First, we would need a consultation to examine your title and that of your neighbor and establish whether you have in fact established a prescriptive right. We would need to go through the detailed history of the right of way and confirm that the exercise of the right has been without force, without secrecy and without authorization, etc.
If you have acquired a right of way by prescription the best advice would be to call your neighbor in person and tell him that you want to register the right of way and formalize the position that exists on the ground and ask him if he would ‘agreement sign a deed of right of way. If he says yes, normally the deed will be drawn up by your notary and sent to him or his notary. An engineer / surveyor would prepare a map in accordance with the land register marking the route of the right-of-way. Your neighbor has the right and should take advice before signing the deed and if he gives instructions to a lawyer, it is standard practice that you pay his reasonable legal fees. Once the deed has been signed by you and him, it is then deposited in the land register for registration.
If he does not agree, it is preferable to contact your notary and your notary will then write to him formally to explain to him that you have acquired a normative right of passage and that you wish to register it and invite him to sign. a deed of right of way. You will need to monitor their response, if applicable. If he does not commit, further letters may need to be sent. If he says he is unwilling to sign and stating the reasons, then we will need to establish whether these are legitimate reasons that could affect your claim that you have established a normative right of passage. If you are still convinced that you have established a normative right of way and your neighbor refuses to sign or a dispute has arisen regarding the right of way, your options are limited.
There is a land registration application that allows some landowners to register their right of way. However, this is only particular in cases where there is no dispute. You must have the required period of 20 years to consider this route. This is done by direct application to the Land Registry under Section 49A of the Land Titles Act, 1964. A Form 68 is prepared and filed in the Land Registry and served on the landowner.
The cadastre decides on the request. The difficulty with this is that an applicant has no guarantee that a landowner could not object and if they usually do, the registration does not take place. The applicant can always ask the court to declare the existence of the right of way.
However, since the deadline is fast approaching if a dispute is expected, it would be safer to go straight to option three below and skip that option altogether.
The only other option available to you is to apply to the court and, if successful, the court will declare that the right of way exists, identify the route and the nature of the right of way and may order the right of way. registration of the right as a burden on the Folio. Depending on the facts of the case, it may be necessary to initiate proceedings before December 1, 2021 if the applicant has 20 years of use before the deadline. The legal action does not need to be processed, but legal proceedings must have been initiated in time.