Reminder – Changes to the Law on Easements
The Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) brought about significant change to the establishment of easements and profits à prendre acquired through long use.
The 2009 Act introduced a requirement to formally register easements and profits à prendre before 1 December 2012. The provisions of the 2009 Act were amended by the Civil Law (Miscellaneous Provisions) Act 2011 (the “2011 Act”) and the deadline for registration was extended to 30 November 2021. After this deadline, if a landowner holding an easement or profit à prendre under the prior law has not registered this interest then the landowner will run the risk of losing same.
What rights are affected under the 2009 Act
The categories of rights affected are easements and profits à prendre which have been acquired informally through long and established use (such as by way of prescription) and not by deed, written agreement, statute or implication of law.
An easement is a right for a landowner to do something on a neighbour’s land or to prevent a neighbour from doing something on the neighbour’s own land. Common examples of easements are rights of way along roadways or via laneways, rights to light, rights of support for buildings, rights for a water pipe, cable or sewer that runs across a neighbour’s land or even rights to park a car.
A profit á prendre is a right to go on to another landowner’s land and to take from that land and examples of such rights would be the right to fish, to hunt, to graze animals, to quarry, to cut timber or turf.
Section 34 of the 2009 Act provides that the acquisition of an easement or profit à prendre by prescription at common law and under the doctrine of lost modern grant is abolished. Section 35 of the 2009 Act provides that an easement or profit à prendre can only be acquired at law by prescription upon the registration of a Court Order. This Section was subsequently amended by Section 37 of the 2011 Act to provide that where there is an agreement between landowners (an uncontested easement or profit à prendre) there is no need to seek a Court Order and the landowner’s easement or profit à prendre can be registered with the Property Registration Authority in accordance with section 49A of the Registration of Title Act 1964.
A third category of easement arises, being implied easements or easements of necessity. These were covered by a rule known as the Rule in Wheeldon v Burrows. This rule provided that on a sale of part of a property there will pass to the purchaser as easements all rights by way of quasi easements that are necessary for the reasonable enjoyment of the property sold. These rights have to have been enjoyed by the owner of the property for the benefit of the part sold and will be implied to have been granted with the part sold unless this would be clearly inconsistent with the intention of the intention of the parties.
This Rule has now been abolished and replaced by Section 40 of the 2009 Act.
Relevant Time Periods
The 2009 Act sets time periods that must be met in order to establish easements and profits à prendre by prescription. Until 30 November 2021 applications to register prescriptive easements and profits à prendre can be made directly to the Property Registration Authority (and, in disputed cases, to the Circuit Court) for assessment on the basis of the old time periods of 20 years use for general applications and 40 years use for foreshore.
With effect on and from 1 December 2021, applications to register prescriptive easements and profits à prendre will be assessed on the following new use periods:
- where the applicant is not a State authority a minimum period of 12 years; and
- where the applicant is a State authority a minimum period of 30 years and 60 years where the land is foreshore.
It is important to note that where a landowner seeks to register easements and profits à prendre post 1 December 2021, any time accrued prior to this date will not be considered.
Risks For Non-Use
Section 39(1) of the 2009 Act provides that on the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by either prescription or implied grant or reservation, the easement or profit à prendre is automatically extinguished save where it is protected by registration in the Registry of Deeds or Land Registry (as appropriate).
Landowners should now consider making applications to register easements and profits à prendre before the deadline of 30 November 2021 otherwise these rights will be lost and time periods to claim (or re-claim) the benefit of such rights will run again from 1 December 2021. From case to case the immediate loss of such rights may impact on the marketability of a property.
Also as it not completely clear whether the provisions of the 2009 Act (as amended by the 2011 Act) will be applied to applications made before 01 December 2021 but not completed by this date, it is recommended that landowners start the registration process sooner rather than later.
Professional advice should always be taken before acting on any of the matters discussed. Please contact a member of our team should you wish to discuss this topic further.