by Jackie Buckley July-02-2020 in Property
Many properties, in some way or another, rely or depend on rights, in, under or over another property, so as to function properly. This may be something very visible like a right to cross over a laneway to access your property or something not as visible, such as the right for water to run through pipes under a neighbours land. In many cases, these rights are well documented but, in some cases, these rights are acquired by long user over a substantial period of time and the owner is deemed to have acquired them by prescription. If you have land that benefits from rights over another property in this way, then it may be time for you to take action to preserve these rights.
The Land and Conveyancing Law Reform Act 2009, as amended, (“2009 Act”) attempted to simplify the law regarding acquiring easements and profits à prendre acquired by prescription.
An easement is “a right which an owner/occupier of land has, by virtue of his ownership of his land, over the land of a neighbour.” An example would be a right of way which runs across a neighbouring property or the running of services or utilities over, through or under land and the right to access for repair, maintenance and construction purposes.
A profit à prendre conversely, can be independent of land owned by the holder and need not relate to a neighbouring property. A profit à prendre is a right to enter someone else’s land and remove “natural material” or natural produce, such as timber or turf. It can also include the right to graze animals or the right to fish or hunt on another’s property.
Under the 2009 Act, an easement or profit à prendre acquired by a period of long use can be obtained by registering a court order or through a direct application to the Property Registration Authority, if they are not in dispute.
The 2009 Act overhauled the user periods required to acquire an easement or profit à prendre.
Pre-2009 Act Regime
In summary, under the old regime, a person could acquire an easement after 20 years continuous use and after 40 years continuous use the right would be absolute and indefensible, unless based on written consent.
To acquire a profit à prendre, it was necessary for a claimant to show a user period of 30 years and after 60 years the right would be deemed absolute and indefensible, again unless based on written consent.
Post-2009 Act Regime
The 2009 Act provides that either an easement or profit à prendre can be acquired after 12 years continuous use as of right without interruption. As of right, means without force, secrecy or without oral or written consent.
The user period differs where the property over which the easement or profit à prendre is claimed is owned by the State – the minimum period is 30 years and 60 years if the property is foreshore.
Transition Period
In order to protect claimants who had either acquired the relevant user period before the 2009 Act was introduced or who were in the course of acquiring it, transitional measures were introduced.
The 2009 Act provided for a 12-year transition period, from its commencement, in which claims can be brought under the old regime and user periods prior to 30 November 2021.
Consequences for Failure to Register before 30 November 2021
The main consequence is that under the 2009 Act, the user period only begins accruing from the commencement of the Act, being 1 December 2009, even where an additional user period is claimed before that date. Therefore, should you fail to register an easement or profit à prendre prior to 30 November 2021, any user period before 1 December 2009 will not be considered. In addition, you will have to meet the criteria set down by the 2009 Act, rather than relying on the previous law.
Practical Considerations
An application to register either an easement or profit à prendre which is not held independently, can only be made to the Property Registration Authority where the title to the property claiming the benefit is registered in the Land Registry. If the title to the property is not registered, a first registration application to register the title in the Land Registry must accompany the application to register the easement or profit à prendre. Furthermore, an application can only be made to the PRA where there is no dispute and mutual agreement exists between the parties concerning the existence of the easement or profit à prendre. In the event of a dispute, a court application will be required.
In particular, the November 2021 date is of significance to a claimant who is seeking an easement or profit à prendre against State land or foreshore as the 2009 Act has extended the relevant user period to 30 and 60 years. This means that a claimant will not be able to obtain an easement and/or profit à prendre where the land over which it is claimed is state land or foreshore, during the period from 2021 to 2039 for State land and 2069 in respect of foreshore. For any claimant who needs to assert such rights, time is now of the essence and you need to act swiftly. For all other claims, an assessment will need to be made as to whether or not it is preferable to proceed under the pre 2009 or post 2009 regime.
If you require any advice in relation to your entitlement to register an easement or profit à prendre please contact Jackie Buckley jbuckley@hayes-solicitors.ie or any member of our property team.
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About the Author
Jackie Buckley
Jackie is Head of the Property team at Hayes solicitors. She is a highly experienced adviser to clients in the banking, public and retail sectors on all aspects of the sale, purchase, leasing, development and financing of properties. She has extensive experience of advising landlords and tenants in insolvency situations and has advised in recent high profile examinerships.