Property Clinic: Have your solicitor establish the lane’s legal status in the first instance
– It’s essential to establish the legal status of a property before asserting one’s rights in relation to it
Samantha Geraghty, Partner and Solicitor at our firm, recently featured in The Irish Times Property Clinic. You can read the original article here and or read the full article below.
Partner & Solicitor
We have a shared access lane which our neighbour had an old shed on – a lean-to on the house. They built a new extension and the roof overhangs the lane without planning permission.
They eventually asked for retention and the council refused but they appealed to An Bord Pleanála, which granted permission.
The problem is that the lane is the access for removal trucks etc to our houses and they can’t gain access now. While the planning board makes reference to a file of road measurements taken by the council, we can’t locate these in any online record.
We were informed that despite the planning permission the first time the road proves to be impassable we should inform the council who will impose a daily fine on the house.
I don’t understand why they don’t just measure the road because the roof is totally unsuited for its position and then with the addition of a soffit and gutter it’s ridiculous.
Our neighbours also added an outside drainpipe from their gutter in what seems to us to be a deliberately provocative move. What is the process for the council to issue enforcement in cases where the public way is being blocked?
It appears that there are two important legal issues in your query.
First, you need to find out what the legal status of the laneway is and the extent of your right to use it. You refer to it initially as a “lane” to which you and your neighbour have access but at the end you refer to it as a “public right”. A private laneway and a public right of way are very different in law. The legal status of the roadway will determine the best course of action for you moving forward.
The second and perhaps less important consideration is the planning status of the roof that appears from your note to be an authorised development now that retention permission has been granted to your neighbour.
You should inspect the title documents for your property (or request your solicitor to do so) to confirm the legal status of the laneway. Find out whether or not there are any agreements in place or covenants on title dealing with the use and enjoyment of the lane. It may turn out that you have recourse against your neighbour under the terms of an agreement or covenant on title, if one exists.
If the laneway is a public road as suggested, then the issue which arises is whether it is in the charge of the local authority or not. Not all public rights of way are in the charge of the local authority.
As regards the planning status of the roof, it sounds as if you did not object to the planning application at the time when your neighbour applied for retention permission. That would have been the ideal opportunity to deal with the problem. Now that retention permission is granted, you should consider employing a chartered surveyor, engineer or architect to inspect the retention application and the conditions attaching to the grant of retention.
Your surveyor, engineer or architect will be able to advise you if the structure as it now exists is in compliance with the conditions of the retention permission granted. If it is not compliant, you may proceed to make a complaint to the local authority, who in turn can issue an enforcement notice followed by legal proceedings in the event of your neighbour failing to comply with the notice.
If the structure is compliant with the conditions of the retention permission granted, then your best course of action may be legal proceedings against your neighbour for interfering with your right of access to your property.
In summary you should have your title and any other documents relating to the laneway inspected by your solicitor to clarify its status. You will be advised on how best to deal with the issues.
Samantha Geraghty is a Partner and Solicitor at P O’Connor & Son, Solicitors, Co Mayo
Image from Istockphoto.com by Machpherson