The Land & Conveyancing Law Reform Act, 2009 (“the 2009 Act”) introduced significant changes to the way certain informal rights over lands can be acquired through long use (referred to legally as being acquired by prescription) as opposed to by way of formal Grant, Deed, Statute or otherwise.
Many properties rely on rights in, under or over another’s property, e.g., right to cross over a laneway to access your property or the right for water to run through pipes under a neighbour’s land to service your own. In many cases, such rights are formally granted and referred to in your Title Deeds but others are acquired by long use over the years.
TYPES OF RIGHTS AFFECTED
- An “easement” is a right which an owner of land has over neighbouring land, e.g., right of way to access the land or a wayleave for the running of services, e.g., water, drainage etc. from the public services to the land or a right to support or light. Such rights exist for the benefit of the land and usually pass with the land on a sale or other disposal.
- A “profit a prendre” is a right to take something from another’s land, e.g., to cut timber or turf, fish, extract water etc.
The use of the easement or profit at all times must be open, without permission (oral or written), without force or secrecy.
This note will focus on easements which are relied on more regularly than profits.
Up to 30th November next, 2021, applications for registration of easements can be made to the Land Registry where there is consent from the neighbouring landowner, or at least no objection. Otherwise, the application has to be made to the Circuit Court. The application must be based on the following use periods:
- 20 years (except over the foreshore)
- 40 years in the case of an easement over the foreshore.
The use does not have to continue up to the date of the application, i.e., there can be some interruption in the use over the years.
Prior to the 2009 Act, it was not necessary to register an easement. For conveyancing purposes, a Statutory Declaration as to long use setting out details of the user was accepted by purchasers and lending institutions as evidence of the right and entitlement.
The 2009 Act provides that it is necessary to register prescriptive easements (and profits a prendre). With effect from the 1st December 2021, applications for registration will be based on the new rules which provide for the following use periods:
- 12 years (except over lands owned by the State including the foreshore)
- 30 years in the case of lands owned by the State (other than the foreshore)
- 60 years in the case of rights over the foreshore.
Importantly, the 2009 Act excludes any period of use prior to it coming in to force on 1st December 2009 and, in addition, the use must be up to the date that the application is made.
SIGNIFICANCE OF CHANGES
The 2009 Act provides for automatic extinguishment generally of prescriptive easements after 12 years continuous non-use. While use preserves the right, registration gives absolute protection.
The effect of the changes is most obvious in the case of easements over State lands. Because the 2009 Act excludes periods of use prior to the 1st December 2009, if you have not registered an easement over State land by 30th November 2021 then it cannot be acquired over foreshore until at least December 2069 and in the case of other State lands, December 2039, notwithstanding you may have had a right to register under the old rules.
While there is a 12 year period between the commencement of the 2009 Act and the change in rules, there are also potential difficulties with regard to all easements if there are any breaks or gaps in the use period.
This is of particular concern in the case of rights of way to access property or wayleaves for essential services, as lending institutions will require that appropriate easements for access to and services for a property be in place before they will lend on the security of a property and accordingly, the risk is that not only could failure to register under the old rules result in an easement being lost, but also that both the value of and ability to sell a property would be seriously impaired.
The time to consider the impact and to act, if necessary, is now. Anyone relying on either a prescriptive easement or profit a prendre should consult with their legal advisor to consider whether, in their particular circumstances, it is necessary or desirable that the registration be effected prior to 30th November next. It is not clear from the 2009 Act whether the old rules will continue to apply in the case of applications made but not completed prior to 1st December 2021 and accordingly, it is recommended that anyone who may be affected would act as soon as possible.
For further information on this issue, please contact Pat Bradley, Niamh O’Connor or Kim Walley in our property department.