We’d now like to reclaim it. I’m afraid to speak to the council in case it tells all the residents to clear it and I wouldn’t be very popular as a result. Any ideas?
RA, by e-mail
A right of way is a right in favour of one or more people (the dominant landowners) over land otherwise belonging to someone else (the servient landowners). The right can exist because it has been used over a number of years or it can be more formal, and written down. In this case it would appear to have been written down and so formed part of the title to the various properties. As each house is bought or sold the new purchaser is on notice of the rights of others. The wording on the deed or grant is important and any action should be taken with its terms in mind.
A right of way can be extinguished, as appears to be true in your case. The question is whether it has already been extinguished by act or by “operation of law”. This means that the prescriptive period of 12 years allowed under the statute of limitations may have passed. During those 12 years, you or your predecessors have had exclusive use and occupation of the area constituting the right of way at the end of your garden.
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To copper-fasten the extinction of the right you may create a physical obstacle to stave off any unwanted attempted use of your part of it. Then when the time comes to sell your property and land, you swear a declaration to that effect so that the next owner can refer to that and beat off efforts of other parties to re-establish their right of way.
There is always the niggling doubt that some future pretender to the right of way will try to restore the status quo and use the original deed or grant to force a legal solution in court. To remove any doubt the servient landowners may negotiate with the dominant landowners to extinguish
the right by agreement, for a price. That agreement can then be copied and used to add to the title deeds for each house.
In this instance, if the local authority was the original granter of the right, it may be asked to join in. This will, of course, add to the expense as there would then be three sets of solicitors.
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Justin McKenna is a managing partner of Partners At Law Solicitors, Dun Laoghaire, Co Dublin