Rights of Way: A Question of Legality
A lesser known fact; most rights of way over farm lanes in Northern Ireland are not actually deemed ‘legal’ rights of way.
Rights established by use over the years are not rights granted by the landowner in a legal document. Later on, this can cause difficulties for those selling sites or financing new homes off farm lanes.
Recently, The Lands Tribunal confirmed a groundbreaking decision and remedy (Lands Tribunal R/16/2020).
Case in Point
Ian Ross owned half the length of a farm lane accessing both his land and a house and land he had recently gifted to Methodist College.
Ownership boundaries in Northern Ireland very often go down the middle of farm lanes, with adjoining owners owning halfway across the lane and using the other half owned by their neighbours.
The College was having difficulty selling the house and land, as there was no legally granted right of way over the other half of the lane, as purchasers and their lenders require certainty of rights to protect their interests. Ian was frustrated with the School’s difficulties and tasked solicitors Wilson Nesbitt to find a remedy. He produced evidence that the laneway had existed since the 1850s.
“The role of the Lands Tribunal in amending or removing obsolete restrictive covenants in historic deeds to permit development, which has planning permission, is well known” commented Wilson Nesbitt Partner Gilbert Nesbitt.
“The first challenge in this case was to argue that the lender’s requirements for a legally enforceable right of way was an impediment that the Lands Tribunal had power to remedy. We then had to argue that not only had the Tribunal power to remove restrictive covenants, but it had the power to declare a legal right of way existed. The Tribunal declared that a legally enforceable right of way existed over Ian’s laneway established by long use”
Remedy & Impact
What this means going forward; this decision will make it easier for those selling and buying rural property down farm lanes. Title indemnity insurers will be comforted that this legal remedy exists if required, which will make title indemnity insurance more readily available and affordable.
Gilbert Nesbitt; “This was probably one of the only property problems we hadn’t previously solved!”
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Wilson Nesbitt are the leading property solicitors in Northern Ireland, responsible for more than one in seven of all the applications to the Northern Ireland Land Registry.
To find out about how we can help you with your Property query, get in touch with our team of experts.