Registration of Easements and Profits

When enacted, 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. 

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 à 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.

The 2009 Act caused issues as it:

1. 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 but only use from 1 December 2009 would be counted.
2. Removed the older procedures used for the acquisition of easements and profits à prendre by prescription, imposing new methods of registering such rights (i) by Circuit Court order; or (ii) by making an application to the Property Registration Authority (the PRA).
3. Provided that after a 12-year continuous period of non-use, an easement or profit acquired by prescription or implied grant or reservation is extinguished except where protected by registration in the Registry of Deeds or Land Registry, resulting in a requirement for continuous use or registration in order to protect an interest.

These aspects of the 2009 Act were heavily criticised and so the Land and Conveyancing Law Reform Bill 2021 (Bill No 140) was published by the Government on 5 November 2021 and the Land and Conveyancing Law Reform Act 2021 came into operation on 30 November 2021 (the Act). The Act has introduced a number of changes, namely:

1. It has repealed sections 33 to 39 of the 2009 Act to remove the timeframes on applicants that were due to take effect after 30 November 2021. This has removed the imminent ’legal cliff-edge’ which had been the subject of much controversy
2. It has ensured that claims to validate or register a prescriptive right that are already pending on 30 November 2021 (before the courts, or the PRA) will continue to be decided as they were before 30 November 2021 (as transitional cases, they were decided under the law that applied before the 2009 Act)
3. It has ensured that new claims (brought after 30 November 2021) will largely be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 Act
4. It has confirmed that it will still be possible to confirm a prescriptive right, either by applying to the court or by registering it directly with the PRA, but this will be optional (as it was before the 2009 Act), rather than a mandatory requirement
5. Section 39(1) of the 2009 Act has been repealed, thereby removing the potential for easements and profits à prendre to be extinguished if not continuously used for a period of 12 years or registered in the Registry of Deeds or Land Registry (as appropriate)
6. Under section 3 of the Act (as under the 2009 Act) acquiring a prescriptive right against land which is owned by a State authority land under the doctrine of lost modern grant, shall require
   • Any period of 30 years; or
   • where the land is foreshore, any period of 60 years     

and

where a claim to an easement or profit à prendre is made in respect of land which was foreshore and has ceased to be foreshore but remains in the ownership of the State, the prescription period under the doctrine of lost modern grant shall be:

• any period of 60 years, or
• any period of 30 years after the land ceased to be foreshore,

at the election of the person making the claim.

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". 

The Act has introduced many welcome developments and much clarity for the registration of easements and profits à prendre.

Contact

For more information, please contact Anne Doyle, Laura Brophy or your usual contact in Beauchamps.