If your property benefits from a right of way or some other form of easement (e.g. a right for your services to cross a neighbour’s land) that has been acquired informally because of long use, you should carefully consider the implications of the Land and Conveyancing Reform Act 2009 to avoid the loss of your rights.
Prior to that 2009 Act, such rights would typically be proven by obtaining a statutory declaration confirming the long use for at least 20 years. However, the 2009 Act introduces a new timeline of 12 years for such easements/rights of way going forward (or 30 years if the right is claimed against a State entity and 60 years if relating to the foreshore). Crucially however the time periods under the new Act would only begin to run from the commencement of that Act on 1 December 2009, so if you do not act in time, any use before 1 December 2009 would be disregarded. Given the consequences of this for the beneficiaries of such rights of way, a transition period was introduced of 12 years, where persons would be entitled to still claim a right under the prior regime so long as they did so on or before 30 November 2021.
However, if your right is being claimed against a State entity or is in respect of the foreshore, which require periods longer than 12 years use, this 12 year transition period will not save your right of way if you fail to act before 1 December 2021. Effectively, there will be a period of between 2021 and 2039 in the case of State land and between 2021 and 2069 in the case of the foreshore, when no one will be able to claim a right of way through long use if not already registered or confirmed by court order.
That Act provides that steps must be taken before 1 December 2021 to either register such informal rights at the Land Registry (if uncontested) or a court order must be obtained confirming the existence of the right. Once that date is passed, you will have to establish the right of way under the new regime based on use since 1 December 2009 alone.
