Registration of Easements and Profits – The Clock is Ticking

The Land and Conveyancing Law Reform Act 2009 (the 2009 Act) radically changed the way in which easements and profits-à-prendre may be registered under Irish law.

One of the purposes of the Act is to bring greater certainty  to easement claims. These rights are acquired by long user over a substantial period of time. Under the 2009 Act, there are now two methods of registering such rights:

1. By Circuit Court order; or
2. By making an application to the Property Registration Authority (the PRA).

Applicants have until 30 November 2021 to avail of the old user period timeframes and from 1 December 2021, new user period timeframes will apply for the registration of easements and profits.

What are Easements and Profits?

• Easements – rights which an owner/occupier of land has, by virtue of their ownership of land, over the land of a neighbour – for example, right of way, light, support and water
• Profits a prendre – a right to go on another person's land and take natural material from it – for example, to cut timber or turf, to mine or quarry, graze animals, fish or hunt.

Prior to the 2009 Act a statutory declaration as to long use of an easement was accepted by buyers as grounds for the validity/enforceability of the rights claimed. The 2009 Act changed this to acquisition by long use over a substantial period on registration of a Court order or by applying to the PRA.

Timeframes before 1 December 2021:

Applications for registration of easements or profits used or enjoyed without force, secrecy, written/oral consent or interruption can be made to the PRA or, in the case of a dispute, to the Circuit Court:

1. Easements: claims are not to be defeated after 20 years' enjoyment by merely showing the commencement of the right. After 40 years' enjoyment, the right shall be absolute, unless shown to be had by consent or agreement.
2. Profits-à-Prendre: claims are not to be defeated after 30 years' enjoyment by merely showing the commencement of the right. After 60 years' enjoyment, the right shall be absolute, unless shown to be had by consent or agreement.

Timeframes after 1 December 2021:

Applications for registration of easements or profits used or enjoyed without force, secrecy, written/oral consent or interruption can be made to the PRA or, in the case of a dispute, to the Circuit Court:

1. for easements and profits, where the applicant is not a State authority, for a minimum period of 12 years, or
2. for easements and profits, where the applicant is a State authority, for
   1. a minimum period of 30 years; or
   2. where the land is foreshore, a minimum period of 60 years

Importantly, from 1 December 2021, any time accrued prior to the commencement date of 1 December 2009 of the 2009 Act cannot be counted, making State-owned land particularly vulnerable. From 1 December 2021, during the periods from 2021 to 2039 (in respect of state land) and 2069 (in respect of foreshore), lands owned by State authorities will be precluded from registering easements and profits.

Risks of non-use

Section 39(1) of the 2009 Act provides that after a 12-year continuous period of non-user, an easement or profits acquired by prescription or implied grant or reservation is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry. Owners of easements or profits not created expressly by the parties should take steps to protect them by registration and to exercise use of such easements or profits.

What next?

State-owned land is particularly vulnerable as a result of this Act and from 1 December 2021, the relevant user periods can only be counted from 1 December 2009, even where the easements and profits may have been used for a period far in excess of 30 or 60 years. State bodies are encouraged to register easements and profits as soon as possible before the 1 December 2021 deadline.

Any person not exercising an easement or profit acquired by prescription or implied grant or reservation should also consider registering, or at the very least, exercising use of such easements or profits, as a 12-year continuous period of non-user would extinguish any such easement or profit.

For more information, please contact or Laura Brophy, Tony O'Sullivan or your usual contact in Beauchamps.