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 was 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:
- By Circuit Court order; or
- By making an application to the Property Registration Authority (the PRA).
The 2009 Act, as drafted, caused issues as it placed a tight timeframe on applicants who only had 12 years from 1 December 2009 (being the date of commencement of the 2009 Act) to avail of the old user period timeframes and after such time on 1 December 2021, new user period timeframes would apply for the registration of easements and profits.
The limited timeframe was heavily criticised and so the Land and Conveyancing Law Reform (Amendment) Bill 2021 (the Bill) was published by the Government on 28 September 2021 which proposes to increase the timeframe from 12 years to 17 years from the commencement of the 2009 Act. This will increase the time limits and reduce the burden on many applicants who otherwise may have lost or delayed their ability to register easements from 1 December 2021.
To ensure that the Bill can be enacted in good time before the 30 November 2021 deadline, Minister Heather Humphries has outlined her intention to seek a waiver from pre-legislative scrutiny, and to seek early signature of the Bill by the President. Our update below is premised on the timeframes in the new Bill and on the assumption that the Bill will be enacted on or prior to 30 November 2021.
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.
Applications on/after 1 December 2026:
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:
- for easements and profits enjoyed over land which is not owned by a State authority, for a minimum period of 12 years from 1 December 2009, or
- for easements and profits enjoyed over the land which is owned by a State authority, for -
- a minimum period of 30 years from 1 December 2009; or
- where the land is foreshore, a minimum period of 60 years from 1 December 2009
A State authority is defined under the 2009 Act rather narrowly as "a Minister of the Government or the Commissioners of Public Works in Ireland".
Vulnerability of State Authorities
Though the Bill has reduced the time pressure by giving applicants an extra 5 years, as noted above, from 1 December 2026, the clock begins to run from 1 December 2009 and any time accrued prior to this cannot be counted.
From 1 December 2026, during the periods from 2026 to 2039 (a 13 year gap in respect of State authority land) and 2069 (a 43 year gap in respect of foreshore), easements and profits enjoyed over lands owned by State authorities and foreshore will be precluded from registration.
These time gaps will make easements and profits enjoyed over lands owned by State authorities or foreshore particularly vulnerable and from 1 December 2026, 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. We would therefore recommend that action be taken sooner rather than later to register easements and profits relating to State authority lands and foreshore before 30 November 2026.
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 profit 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.
Any person not exercising an easement or profit acquired by prescription or implied grant or reservation should 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.