Pa Daly (Kerry, Sinn Fein) | Oireachtas source

As the Minister said, this is a complex area. She spoke about the Prescription Act 1832, and in this regard she consulted with the Law Reform Commission, the Law Society of Ireland and the Bar Council of Ireland, all of which were of the view that the doctrine of lost modern grant was the best way of establishing rights of way or easement. A fuller consultation is needed, however. I welcome this Bill and the work that has gone into it. I have been calling for legislation such as this and stating that it was necessary to deal with the issue. It is important that it is implemented, as the Minister said, before the deadline of 30 November, and I credit those who have been campaigning on this issue.

I am not sure what the motivation was behind the introduction of the Land and Conveyancing Law Reform Act 2009. There was certainly a perception in rural areas that it was intended to benefit urban situations and transfers of land there. Whatever happened, no thought was given at the time to people who owned land in areas where their rights of way might have sometimes traversed up to 20 other folios to get to a public road. The sections being repealed were totally impractical and a nonsense and I commend the Minister for bringing forward this legislation.

Obtaining the consent of another person might sound simple, but sometimes neighbouring land could have been registered, and I have come across cases like this myself, to someone 60 or 70 years ago. The person concerned might have passed away years ago and trying to obtain consent from his or her estate or tracking down relations could prove difficult. The Act also did not consider that sales would, and did, fall through because of the delays in registering the various rights of way. It also did not consider that solicitors would be unable to certify titles to lending institutions because of the inability to state that all the rights of way had been registered on the folios. In addition, the Act did not consider that banks would then be extra careful following what had happened during the boom times and that they would refuse to sanction mortgages, thereby causing further delays, or that they would seek that extra inquiries be undertaken which, in turn, would result in loan offers going out of date.

Equally, it did not, as the Minister said, consider that unnecessary court cases would arise or that contracts would be left unsigned in markets which were fluctuating up and down. The Act also did not consider that land which had been used for agricultural purposes and rights of way would not have been registered and that rights of way for agricultural land would not apply to dwelling houses. Moreover, it did not consider that the Land Registry would raise queries, about unregistered land in particular, and cause further delays. Furthermore, it was not taken into account how impractical it would prove, in many cases, to require applicants to have to advertise in local papers for people who might wish to come forward with objections. Those sections, therefore, were totally and utterly out of touch with the reality of land ownership and the difficulties in that context in rural Ireland.

It had been the case that a statutory declaration could be given that a house or land had been used without let and hindrance for 30 years or more. If the situation was not broken, then why try to amend or fix it? The Act of 2009 had introduced the provision whereby, in effect, a landowner had to go-cap-in-hand to a neighbour to seek consent to the registration of a right of way. There may not have been any difficulties, but I came across cases where there was a shared entrance of a very small space, for example, and even though it was going to be mutually beneficial to both sides for someone to sign a consent the people involved were just not prepared to do that because they did not want to give anything away. In that way, any simmering or underlying tensions could have been exacerbated. Inevitably, as well, there was going to be a cost involved if two, three, four or five landowners had to seek legal advice, obtain folios and speak to their solicitors. It was, therefore, going to be more expensive even before the possibility that any court case was going to ensue.

Therefore, I welcome what the Minister has said. I agree with her that mandatory registration had not been working properly. I also welcome that the Minister has announced a review to take place before June of next year. That will all help. It will, hopefully, regularise the situation and allow more transactions and transfers to take place. Some of our team in the Seanad have proposed amendments. I am not going to talk about the foreshore side of things, however, and I hope that with the co-operation of all sides we can, indeed, facilitate the overturning of this difficult situation. The courts being closed during the pandemic also led to extra delays on top of the existing difficulties and the legal and practical complexities of registering rights of way were made even more difficult. I hope this legislation will go through the House speedily and I encourage that happening.

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