Neighbour employing workmen on our property because they claim a right of way

aaa1

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Hello oh wise ones,

I'm looking for some advice on a right of way issue (sigh.....).

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).

A file has gone to the DPP against this individual and the direction is civil remedy. I believe this person's claim of a right of way may have been strengthened by the two individuals against whom criminal charges are pending. They gave statements and would obviously be happy that they could claim in their future prosecution that the DPP directed no criminal charge on trespass.

The problem is that a civil remedy simply won't happen due to this person's actions over the past two decades and the escalation involved. I am also fearful that because the DPP has said no to criminal charges, that the individual will simply take that as a carte blanche to do what they want in terms of both trespass and criminal damage. My parents have already moved out of our home because of this and I am seriously concerned for their mental health.

We can appeal the DPP's directions that no charges be brought despite the garda recommendations on trespass, harassment and criminal damage. Any advice on the appeal?

Or anything else which could potentially remedy this?
 
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.
 
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.
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.

In truth, we don't care if people want to walk across our property so long as they do no damage. But this person is determined to keep harassing us, they really have a 'ask forgiveness rather than permission attitude'. The fact that they were told in writing by the County Council that there is no right of way hasn't deterred them. C'est la vie unfortunately
 
Hearing that your parents have had to move from their home sounds horrendous for your family. I would personally feel that some law had been broken if I had to move out of my home because of my neighbours actions.

I was going to suggest that you remove the laneway and plant a crop that would be damaged by people walking on it. Or perhaps asking SC would it be acceptable to remove the laneway. But I cannot see your parents going down that route. My only other suggestion is to engage with your community Garda. Ask how your parents can feel safe enough to move back into their home and not live in fear. It sounds as if you want to be reasonable friendly neighbours but that the physical actions of a neighbour have totally gotten out of hand. Holding public meetings to whip up people against you when you have written proof no right of way exists, seems awful.
 
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.
 
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.

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?

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.

I’m a bit confused here, is the neighbour using this laneway as well or just CR2?

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).

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?
 
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.
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.

In terms of mediation, I fear that time has passed. I can't overstate the impact on my parents mental health. This person is asking people for donations of E250 to take a case - probably to register the right of way. It's less about money and more about them gathering social support I think.

In terms of the wider community and how they feel, I fear the pot has been well and truly stirred by this neighbour. They've very charming and manipulative and my father has definitely been portrayed as a difficult old farmer who is blocking a right of way. He feels he shouldn't have to defend what is his and he shouldn't have to discuss his private property. Which is true, but isn't really helping how the whole thing is being viewed. Interestingly though, since the 'walk' and the pending criminal charges, there has been no more group walks. I sense that people want to steer clear, especially now that my parents have moved out. Starving this person and their campaign of oxygen is what I think we need to do.
 
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?

Sorry, maybe I wasn't clear. CR1 is a public county road which leads to our home and that of the perpetrator. CR2 is also a county road that runs parallel but separate. Between CR1 and CR2 is our farm (and a Coillte forest and another landowner) and across our farm is an old laneway. It is this laneway this person has decided to start using. They have no excuse to cross our farm because they have no property on CR2 and even if they did, they should use CR1 to reach the town, and then travel on CR2. They began using the laneway when CR1 was flooded and they claimed the only way they could reach the town was via CR2, hence they had to cross our farm to reach it. This is despite us and other homeowners being able to drive through the flood.

In terms of bringing a digger onto our farm, they did this because they claimed trees on the old laneway were hitting their tractor. This is the one incident that really bothers me because essentially this person is claiming a right of way, is not producing any evidence of this right of way, and is damaging our property under the guise of this 'right of way'. What that says to me is that you can claim a right of way and then do what you want without producing evidence. A brasser neck I have never seen
 
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?

I agree about too many public rights of way being blocked off. And we'd be happy for people to cross our property - but not if they're causing damage or bringing diggers.

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.

I think the wider community is wanting to steer clear now they know my parents have moved out. The laneway has always been very muddy and narrow and at this time of year, pretty much impassable. There isn't an appetite from the wider community to push to open it, but you know what it's like, if you mention in rural Ireland that right of way is being blocked, people get their pitchforks out.

The landowner on the other side was sucked into this at the start by the perpetrator and they have said they used the laneway over half a century ago. We have no dispute with them and that may be true, but again, they would use it and not cause damage. Unlike our other wilful trespasser.
 
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 not sure about the disclaimer to be honest. But the council were unequivocal in their email to this person that there was no right of way on it from their point of view.

Nobody has been using the laneway except in times of flooding, it has always been private property.

When it comes down to a judge making a decision, am I right in saying there are lots of stipulations that can be attached? For example, it could only be used by people on foot? Or only certain people or landowners could use it? By that I mean this person lives some distance from this laneway and has no reason or argument to cross our property. And particularly not now that the council is working on a flood relief programme which will eliminate the excuse to cross our farm (they tried to interfere in the relief programme but that's a whole other story)
 
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. 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.
 
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.

Thanks Bluecup, good to know what a judge would look at. I believe the perpetrator would fail on all these counts - a public meeting was planned without our knowledge, they communicated with the council without our knowledge (and asked them to take the laneway under their remit) and they crossed our farm without consent while also inciting others to do the same. We also now have garda statements, with all the ancillary evidence, which could be put before the court in any civil case. Even though it looks like the DPP won't pursue charges, the fact that gardai recommended charges (including trespass) surely won't help their case.

My father won't put a lock on a gate for fear that it could result in some sort of injunction (and therefore a pricey court case). He's a simple farmer and this is all beyond him and the thoughts of court terrifies him. From an optics point of view, locking a gate could lend itself to an accusation of us blocking the right of way and suddenly there's an excuse for another mob with pitchforks marching across our farm to 'assert their rights'. Hence why I feel that starving the situation of oxygen is probably most prudent right now.

PS: Not that it should matter, but the neighbour is a woman, not a man.
 
PS: Not that it should matter, but the neighbour is a woman, not a man.

I actually considered the fact that I was assuming it was a man and then thought "it's always men obsessed with land" That's me told!
 
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