Yes, it is unfortunately. We did get SC advice and we were warned that because there is a lane, that could muddy the waters. We feel that if someone wants to register a right of way, they can go ahead and produce evidence of their claim. But it could be harder for us to disprove a right of way.IANAL but that sounds like a complex, unfortunate and distressing set of circumstances. My only suggestion is to seek the best legal advice you can, SC if necessary.
Our rural family home is at the end of a county road, let's say 'CR1'. Another road runs parallel but separate, let's call it CR2. In recent years flooding has massively increased and CR1 was occasionally impassable. When that happened a neighbour began crossing our farm at reach CR2 in order to reach town, claiming they had a right of way. There is no registered right of way across our farm, as confirmed in writing by the county council to both us and the individual, but they have just chosen to ignore it.
The water is muddied a little by the fact that there is an old laneway through our farm to CR2. We have asked this neighbour for evidence of their claimed right of way and they keep telling us 'it's coming' but of course, no documentation appears and they keep trespassing. In the meantime gates are left open, signs go missing, and damage is caused to our farm.
But if only that were all that happened. This person employed a workman to bring a digger onto our farm to cut trees, we found the same person cutting trees with a chainsaw, they organised a public meeting locally (and notified us by anonymous letter) to try and 'open the road' and also brought a gang on a 'walk', from which criminal charges are pending against two individuals (whole other story).
Yes, there is an old laneway which crosses our property, a Coillte forest and then another landowners. How it got there, we don't know, it was always there in our lifetimes. But it has never been used by the public. We have looked but cannot find any documents to state there is a right of way. And obviously the other party can't find any either or they'd have been thrown in our face.As others have pointed out there are a range of issues and you say you procured Counsel's Opinion. I think you have mentioned a laneway and you do not say how that got there.
You have not mentioned any legal documents in relation to title and whether the land is Registry of Deeds or Land Registry.
For your neighbor to have been using the lane suggests that his folklore may be more credible.
You may need to mediate here.
Does CR2 go through your farm and on to a public road? Does it begin and end at a public place?
What is the relevance of CR1 for the neighbour? You don’t say whether they were using CR1 prior to flooding.
The county council will probably only confirm that there are no public rights of way listed under the County Development Plan. However that list usually comes with a disclaimer that their list is not exhaustive. Was there any sign of the disclaimer here?
Also most rights of way in this country are not registered with the council and not on property deeds. Once a dispute like this happens, a judge usually makes a decision on whether the public right of way exists.
Have others been using CR2 for any purpose over the years?
I’m a bit confused here, is the neighbour using this laneway as well or just CR2?
Are they cutting trees along CR2 or another part of the farm?
Was there much interest in the public meeting? Why would others care about CR2 if this neighbour is the only one using it?
Stronghanded tactics like this will show your neighbour in a poor light if a civil case is brought to prove the existence of a right of way. He has shot himself in the foot a little here.
Personally I think too many of the old public rights of way have been blocked off in this country but at the same time bully boy tactics and intimidation have no place among neighbours. The bar is very high for someone to prove a public right of way exists in court if it comes to that. Out of interest, how does the wider community feel about this? Is there a general belief that CR2 forms part of a public right of way?
Stronghanded tactics like this will show your neighbour in a poor light if a civil case is brought to prove the existence of a right of way. He has shot himself in the foot a little here.
Personally I think too many of the old public rights of way have been blocked off in this country but at the same time bully boy tactics and intimidation have no place among neighbours. The bar is very high for someone to prove a public right of way exists in court if it comes to that. Out of interest, how does the wider community feel about this? Is there a general belief that CR2 forms part of a public right of way?
Does CR2 go through your farm and on to a public road? Does it begin and end at a public place?
What is the relevance of CR1 for the neighbour? You don’t say whether they were using CR1 prior to flooding.
The county council will probably only confirm that there are no public rights of way listed under the County Development Plan. However that list usually comes with a disclaimer that their list is not exhaustive. Was there any sign of the disclaimer here?
Also most rights of way in this country are not registered with the council and not on property deeds. Once a dispute like this happens, a judge usually makes a decision on whether the public right of way exists.
Have others been using CR2 for any purpose over the years?
Can you explain a little more about what you mean about the bar being set high to prove a right of way? What exactly has to be produced? Because this person hasn't moved to register the right of way, I feel they've been advised they have a weak case. But if it does come to that, I will absolutely be putting the years of harassment and damage on the public record.
There really is a lot going on here but just to bring it back to basics, a judge would look at whether there is evidence of user consistent with the three tests of nec vi, nec clam, nec precario.
Nec vi = “without force or violence”.
nec clam =“in secret or whether it was obvious”.
nec precario = “permission or consent or toleration”
You would have a good argument that your neighbour used force on this occasion as there was force used on this occasion. It could be worth putting a lock on one of the gates he uses. Another factor is what steps did the landowner take to counteract such user? A formal legal letter to your neighbour stating your refusal of permission to use the land would set that out.
PS: Not that it should matter, but the neighbour is a woman, not a man.
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