# Does a wayleave exist?



## Páid (29 Sep 2020)

I have checked the land registry and there is no record of an easement or wayleave registered against my house. I think it was built in 1982 and I've owned it for about 17 years.

A cable company has very untidy cables running across the front of my house and I wish to have them removed. I am not worried about never being able to avail of their services. I believe RTE originally got house owners to sign a wayleave back in the day but this would have been signed by the previous owner (if they did at all).

If a wayleave was signed by a previous owner are successors bound by that wayleave even if it was never registered against the property? Could it be registered now, decades later?


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## dereko1969 (29 Sep 2020)

Do you have neighbours who may be impacted by your decision?


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## Páid (29 Sep 2020)

I am of course mindful of my neighbours but that really has nothing to do with it.


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## mathepac (29 Sep 2020)

What does the solicitor who conducted the conveyance have to say about the matter? If a wayleave was registered, it and any other encumbrances, mortgages, orders registered against the property should have been drawn to your attention. IANAL.


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## Páid (29 Sep 2020)

Nothing mentioned during conveyancing. It wasn't registered then and it's not registered now.


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## mathepac (29 Sep 2020)

See, you answered your own question and YANAL!!!


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## Páid (29 Sep 2020)

Thanks but I haven't answered my own questions. If the original wayleave agreement exists could it be registered now almost two decades later? 

I suspect the vast majority of these agreements were never registered against properties because that would have been an additional expense. Are they enforceable now given that the house ownership has changed and the company owning the network has changed multiple times?


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## mathepac (29 Sep 2020)

You didn't sign it, it's not registered against the property which you seem to have bought clear of any encumbrances, so why not approach whoever you think owns the wires and say you want them removed,  at their expense of course?


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## Protocol (30 Sep 2020)

I had NTL/UPC/Virgin cables across my eaves.

No mention of any wayleaves when buying or selling the house.


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## Páid (30 Sep 2020)

They wrote to me stating that they want to upgrade their network in the area and they will need to enter my property. I'm not sure how wise that is given the current restrictions. I'm not inclined to let them on to my property at all for a number of reasons.



mathepac said:


> You didn't sign it, it's not registered against the property which you seem to have bought clear of any encumbrances, so why not approach whoever you think owns the wires and say you want them removed,  at their expense of course?


I intend to ask them for a copy of the wayleave agreement. If it exists and I am bound by it then I have to abide by it. If they cannot produce it I believe am perfectly entitled to refuse them entry.


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## Páid (30 Sep 2020)

From their Terms and Conditions hidden away on their website.



> 5.2 In order to perform our obligations under this Agreement and in consideration of the Services provided to you, you hereby grant us such licence in respect of your land, buildings and premises (‘your land’) as is necessary for us (including our employees and authorised representatives) to provide the Services to you and our other customers, including but not limited to, from time to time, upon giving you reasonable notice (save in any emergency) to enter those parts of your land to install, maintain, adjust, repair, replace, renew, upgrade, inspect or remove, and to keep installed and to operate at or on your land, Equipment and/or telecommunications apparatus. *You will at your own expense provide or procure whatever further rights over your land we require from any landlord and/or successor in title and/or any other person with an interest in your land whose consent is legally required to enable us to exercise the rights over land granted pursuant to this paragraph and you will enter into any necessary additional documentation to give effect to the grant of such rights.* Each party shall at all times comply with all reasonable instructions of the other party or any third party in relation to the exercise of any rights over your land obtained in accordance with this paragraph.
> 
> 5.3 *Your failure to comply with paragraph 5.2 may result in withdrawal of the Services and termination of this Agreement, and if this happens we will be entitled to continue to enter upon your land to enable us to provide the Services to neighbouring customers and/or remove all or part of our Equipment.*




Thankfully I have never been a customer and never signed up to these terms.


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## dereko1969 (30 Sep 2020)

Páid said:


> I am of course mindful of my neighbours but that really has nothing to do with it.


It kind of does. What solution are you expecting the company to propose that will not impact your neighbours? Prepare for some downtime for your neighbours in terms of TV and possibly Broadband for people who may be working from home if you require the cabling to be removed.
Why are you having an issue with this now after 17 years living in the house? Why didn't you follow up immediately after purchasing the house?


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## Páid (30 Sep 2020)

It doesn't and the neighbour issue really is not relevant. It's not a utility like electricity, water or gas. I have no responsibility to provide my neighbours with TV or internet or to provide access to land in order to enable that. That's between the provider and the customer - I'm a third party.

Cable companies run cables over ground because it's cheaper (and uglier). Because I pay my mortgage every month that gives me the right to tell a private company not to drill holes and attach things to my walls and soffits.


> Why are you having an issue with this now after 17 years living in the house? Why didn't you follow up immediately after purchasing the house?


Who said I didn't? The issue that has prompted this is that they wish to carry out upgrade works now and I am not happy to allow that to happen.


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## Leo (30 Sep 2020)

Páid said:


> Thankfully I have never been a customer and never signed up to these terms.



Their only case arising from those terms would be with the former owner, assuming they signed such a contract at the time. You can't be held liable for their failure to comply.


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## Páid (30 Sep 2020)

My point with that post is that rather than using wayleaves they seem to be using their Terms of Service to get customers to sign away their property rights.


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## Cervelo (30 Sep 2020)

When I bought my house back in 1998 NTL/UPC or what ever Virgin was called back then, had cables running across both the front and back of my house eves, I initial was a customer in 98/99 but changed over to Sky in late 99.

In 2009 I contact them and asked that they remove the cables from my house, they said they would pass in on to the tech department but I never heard back, this went on for the next four years until I took the matter into my own hands and removed the cables my self.
That evening I had a knock on the door from the service guys and agreed to temporarily allow cables across my house as long as they moved them permanently as soon as possible.

Six months later after many visits from management offering all sorts of deals and freebies they finally rerouted the cables around my property


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## AlbacoreA (30 Sep 2020)

I thought the wayleave is attached to the property. It does not dissolve if the property changes owner. 

I'm open to correction.


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## Leo (30 Sep 2020)

Páid said:


> My point with that post is that rather than using wayleaves they seem to be using their Terms of Service to get customers to sign away their property rights.



Yeah, they're trying to contract their customers into registering these on their behalf. I doubt too many are actually following through on this though, so when that owner sells the service provider lose all entitlement to access.


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## WizardDr (1 Oct 2020)

Briefly they would have had to get permission.

At the time they would have worked around those that did not give permission.  

Now the cable could carry phone etc.  so you may deprive yourself.

You could insist.

What I would do is merely get them to tidy up.


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## Bluecup (1 Oct 2020)

I've known someone to get free phone and broadband as a condition of allowing one of these cables along their back fence.


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## WizardDr (1 Oct 2020)

@Leo I didn't see your post   - are you saying the permission withers with the owner that gave the permission ?


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## Leo (1 Oct 2020)

WizardDr said:


> @Leo I didn't see your post   - are you saying the permission withers with the owner that gave the permission ?



Yeah, as worded the customer undertakes to do whatever is required to ensure the supplier retains rights of access even if the house is sold.  If the customer does nothing it remains an agreement between two parties, the only recourse for the supplier would be to sue them for breech of contract. A new owner can't be bound by a contract they were no part of, and wayleaves only. 

The old-school acquisition through long-use is no more.


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## WizardDr (1 Oct 2020)

It does not seem to raise issues - how is ESB wayleave not affected?


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## Páid (1 Oct 2020)

Bluecup said:


> I've known someone to get free phone and broadband as a condition of allowing one of these cables along their back fence.


The problem with that is they have to sign up to the cable company's terms of service. That means that they have given away rights they may not be expecting to.


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## Bluecup (2 Oct 2020)

Leo said:


> The old-school acquisition through long-use is no more.



You can still acquire through long use under the new legislation but would have to show continuous, uninterrupted use since the introduction of the new rules, since 2009.


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## Leo (2 Oct 2020)

Bluecup said:


> You can still acquire through long use under the new legislation but would have to show continuous, uninterrupted use since the introduction of the new rules, since 2009.



Yes, but on top if that it has to be registered, prior to that legislation just the continuous use was enough. Anything not registered by the end of 2021 will be considered extinguished, a case relying on 12 year use would only be permissible 12 years after that.


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## Bluecup (2 Oct 2020)

Páid said:


> The problem with that is they have to sign up to the cable company's terms of service. That means that they have given away rights they may not be expecting to.



Looking at the terms you quoted on the previous page, you wouldn't be giving up any rights in the legal sense. Permissive access is separate to a right and can be withdrawn at any point.
You can provide permissive access for the purposes of the telco contract and withdraw that access when you are no longer happy with the arrangement.


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## Bluecup (2 Oct 2020)

Leo said:


> Yes, but on top if that it has to be registered, prior to that legislation just the continuous use was enough. Anything not registered by the end of 2021 will be considered extinguished, a case relying on 12 year use would only be permissible 12 years after that.



Maybe we are saying the same thing. My understanding with the new act, i.e. the 2009 Act, is that if you can show 12 years uninterrupted use as a right (not with permission) you can register the easement. So the earliest you can register is 2021 (12 years after 2009) but equally you can use this pathway in 2022 for a right of way where the user period began in 2010 and so on.

A lot of the legal articles about this had the angle of "register by 2021 or lose it", probably a good way to drum up business but misleading in my opinion.


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## Páid (2 Oct 2020)

Thanks @Bluecup. So if I want to prevent them from registering the easement on my property I have to act now?


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## Leo (2 Oct 2020)

Bluecup said:


> A lot of the legal articles about this had the angle of "register by 2021 or lose it", probably a good way to drum up business but misleading in my opinion.



Well the articles published by legal practices certainly do encourage engaging their services to be sure alright   

The legislation does contain a section stating:



1) An interest—(_a_) to which a person was entitled, or (_b_) acquired by a person, before the commencement of this Chapter in consequence of the failure to use words of limitation in a conveyance executed before that commencement or the application of the Rule in _Shelley’s Case_ is extinguished unless the person claiming to be entitled to the interest or to have acquired it— (i) applies to the court, within 12 years from the commencement of this Chapter, for an order under this section, and (ii) registers any order made under this section in accordance with _subsection (3)_. 

I presume that's where the register it by 2021 or lose it comes from.


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## Bluecup (2 Oct 2020)

Páid said:


> Thanks @Bluecup. So if I want to prevent them from registering the easement on my property I have to act now?



As always seek legal advice as oppose to the opinion of an anonymous internet poster but if you send them correspondence confirming that their use of your land is with your permission, i.e. permissive access, and this permission can be withdrawn at any point in the future by you. That way you are clarifying they are not a 'user as of right'.

If they wanted to force the matter they could challenge this in court to assert their right and have it recognised legally but I doubt they would bother. However if a wayleave agreement does exist on their files with the previous owner as you mentioned might be the case, the court would probably put a lot of weight on that.


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## Páid (2 Oct 2020)

This thread has highlighted a lot of things I was not aware of. I just wanted more information before I contact them and/or my solicitor.

My intention at this point is to not allow them do the upgrade but my primary motivation is not to allow them register an easement/wayleave against my property.


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## DeeKie (2 Oct 2020)

We recently applied to register a right of way with the land registry based on long use. A neighbour wrote to say that they never saw us use the lane so we were told that the Land Registry would not adjudicate on it and that we need to apply to court. The Land Registry piece was very straightforward, of you are interested in it.


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## Páid (2 Oct 2020)

Bluecup said:


> However if a wayleave agreement does exist on their files with the previous owner as you mentioned might be the case, the court would probably put a lot of weight on that.


I don't see how a court could give weight to that. If they did obtain a wayleave but did not register it and the house was subsequently sold (and bought unencumbered) it's their own negligence.


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## AlbacoreA (4 Oct 2020)

Free TV is usual. Never heard of free BB.


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## Páid (9 Oct 2020)

So they came just now and I asked them not to come onto my property. They went up next door neighbours wall and reached over. I asked them not to go near my soffit and they proceeded anyway. I told them that they were trespassing and I was going to call the Gardaí. They said no problem. To which I told them that I'm just going to take the cable down when they're gone.


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## PaddyBloggit (9 Oct 2020)

Páid said:


> I asked them not to go near my soffit and they proceeded anyway.



I'd be up my ladder straight away taking down what was encroaching on my side.

The cheek of them.


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## Páid (10 Feb 2021)

Update.

Cables were removed today and yesterday.


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## AlbacoreA (10 Feb 2021)

Did they resolve the neighbours. Not that is your issue. Just curious.


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## dubman1 (10 Feb 2021)

A wayleave would be registered on page 4 of a standard folio. You can request same from the Land registry or your solicitor should have a copy.
If its not on the folio then whatever other arrangement that might exist is not attached to the property .If it were on the folio and you tried to sell your property the purchasing solicitor would likely highlight this fact to the buyer and it could be a game changer for the purchaser.

If its not on the folio and no other contract was grandfathered in when you bought the house then you could try charging the company rent or negotiate free services from them.


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## Páid (10 Feb 2021)

AlbacoreA said:


> Did they resolve the neighbours. Not that is your issue. Just curious.


They gave the neighbours 30 days notice that work was being done. They lost connectivity for a few minutes while the cables were being switched over.


dubman1 said:


> A wayleave would be registered on page 4 of a standard folio. You can request same from the Land registry or your solicitor should have a copy.
> If its not on the folio then whatever other arrangement that might exist is not attached to the property .If it were on the folio and you tried to sell your property the purchasing solicitor would likely highlight this fact to the buyer and it could be a game changer for the purchaser.
> 
> If its not on the folio and no other contract was grandfathered in when you bought the house then you could try charging the company rent or negotiate free services from them.


It's not on the folio.


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