Easements and Profits à Prendre9 December, 2021
The Land and Conveyancing Law Reform Act 2009 (as amended) (the “2009 Act”) was introduced to improve the practice of conveyancing and attempted to simplify the law in respect of acquiring easements and profits à prendre by prescription (ie long use or custom).
What is an Easement and Profits à Prendre
An easement is a right an owner/occupier of land has over the land of a neighbour. This can include a right of way over the land for access or for the throughput of services or utilities serving your property. A profit à prendre is a right to extract natural material from another person’s land. It does not need to be a neighbouring land. It may include the right to cut timber or turf, to mine or to quarry.
Under the 2009 Act, an easement or profit à prendre by prescription can be obtained by registering a Circuit Court Order or by an application to the Property Registration Authority pursuant to Section 49A of the Registration of Title Act 1964 where the entitlement to the easement is not in dispute.
Transitional provisions set out in the 2009 Act expired on the 30th November 2021. During this period claims were allowed for the registration of an easement or profit à prendre that had accrued before this date under the regime in place prior to the introduction of the 2009 Act.
Until the 30th November 2021, the user period required to be established for a claim was 20 years for easements and 30 years for profits à prendre i.e., pre- 2009 Act regime.
After 30th November 2021, the user period required to be established for a claim for an easement or profits à prendre was:
• 12 years if the property was not owned by the State.
• 30 years where the property was State Land (other than foreshore).
• 60 years where the property was Foreshore Land.
The transitional provisions allowed for claims based on prescription accrued prior to the introduction of the 2009 Act to be taken into account. Following the 30th November 2021, any rights accrued prior to the 1st December 2009 would be disregarded.
This had significant consequences for those seeking to register a prescriptive easement over State Land or Foreshore Land. If the easement was not registered before 30th November 2021 this meant an application could not be made until 2039 and 2069 respectively as any rights accrued prior to the 1st December 2009 would not be taken into account in establishing the required relevant user period.
Land and Conveyancing Law Reform Bill 2021
To address concerns raised with the changes that were due to come into effect on the 1st December 2021, the Land and Conveyancing Law Reform Bill 2021 was enacted by Government and came into operation on the 30th November 2021 (“the 2021 Act”). The Act repeals Sections 33-39 of the 2009 Act, removing the 30th November 2021 deadline to register an easement or profit à prendre in order to avoid losing any rights established prior to the introduction of the 2009 Act. Such rights as had accrued before the 2009 Act will not now be disregarded.
An applicant seeking to register an easement or profit à prendre after the 30th November 2021 must be able to show a user period of at least 20 years. The relevant user period to be established in respect of State Land or Foreshore Land, is any period of 30 years and 60 years respectively.
The 2021 Act provides that any claims for an easement or profit à prendre where the relevant user period was completed before the 2009 Act will be assessed under the law that applied prior to the 2009 Act. That includes common law, the doctrine of “lost modern grant” and the Prescription Act 1832. Given that the Prescription Act 1832 was repealed pursuant to the 2009 Act and the difficulty in establishing claims under common law, claims will largely be made under the doctrine of lost modern grant. Where the relevant user period was not completed before the 2009 Act the claim will be decided under the doctrine of lost modern grant.
An application to register an easement or profit à prendre made prior to the 30th November 2021 will be assessed in accordance with the law that operated before the introduction of the 2009 Act.
A detailed review of the law in this area is expected. In the meantime, the 2021 Act addresses the concerns raised by various stakeholders by removing the mandatory requirement to register a prescriptive easement or profit à prendre in order to avoid losing rights acquired through long use.
For further information, please contact our Real Estate Team.