James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senator for raising this matter. I know it is something she has been working on for some time. It is a matter of concern for quite a number of people.

This matter relates to a change in the law on prescriptive rights of way that was due to take effect on 30 November 2021. A prescriptive right of way is one acquired by long use as of right by a property owner over a neighbour's land which is not recorded in any surviving title deed. Common examples are rights to access a farm or dwelling house where the access laneway is privately owned by one or more neighbours. Public rights of way are rights contained in written title deeds are not affected.

As Senator Higgins rightly points out, the Land and Conveyancing Law Reform Act 2009, as amended in 2011, introduced a new requirement for these rights based on long use to be verified by a court order or an uncontested application for registration and register with the Property Registration Authority, PRA. Up to 30 November, this could be done based on existing legal rules on establishing long use. After that the registration would still be possible but only under new legal rules.

The Minister, Deputy Humphreys has consulted with a range of stakeholders, including the Law Society, Bar Council, Law Reform Commission and PRA, and listened carefully to the concerns raised. It is clear that there remains legal uncertainty about how the new rules may be interpreted and that it has not yet been possible to register many important rights of way that appear to have been enjoyed for many years without dispute. These problems are causing significant delays in conveyancing and in loan applications.

The Minister is satisfied that, if not addressed, the deadline was likely to lead to unnecessary litigation between neighbours, causing needless stress and legal costs. As an interim solution, on 21 September, the Minister secured Cabinet approval for a short amending Bill. It will be a stand-alone measure to be enacted before the November deadline. Consistent with the strong preference indicated by stakeholders, the Bill will remove the major changes to the law on prescriptive rights that were due to take effect after 30 November, thus removing and not extending the upcoming deadline. This is also expected to greatly reduce current conveyancing blockages. The reason that it is not on the priority legislation list is technical and relates to the fact that a Bill must be published before it can go onto the priority list. However, I assure the Senator that it is an absolute priority. It needs to be passed before the deadline. It now has Cabinet approval and will be a stand alone Bill. The Department of Justice is in ongoing consultation with stakeholders on this priority Bill. The Minister has also obtained agreement to set up a time-bound review, to identify any further legal reforms required after 30 November, in this complex legal area.

We need to grasp the nettle here. There have been several extensions. This matter is causing distress. It causes worry for the individual rights owners and communities and is causing untold headaches for solicitors, barristers and legal representatives. A decision must be made on whether it is removed altogether or on whether, perhaps, a different amendment needs to be brought in. We need to establish the permanent solution to the problem.