Changes to registering easements and profits-a-prendre introduced by the Land and Conveyancing Law Reform Act 2021 (“the ACT”)

What is a Prescriptive Easement or Profits-a-Prendre?

A prescriptive easement is a right enjoyed by a landowner over someone else’s land for example a right of way or a wayleave to run pipes or cables under neighbouring land in order to access services such as drainage and water pipes.

Unlike a prescriptive easement, profits-a-prendre is a right to enter onto someone else’s land and extract a natural resource from the land such as grazing cattle, fishing, hunting or to cut wood. The right holder in this instance does not need to be a land owner.

Where do Prescriptive Easements arise?

Prescriptive easements arise as a result of long use where there is no written right of way or easement granted. In urban areas, common examples are laneways running at the back of Victorian properties. In rural areas, this could be lanes providing access to farmland. The Act came into operation on 30 November 2021 and has made some significant changes in relation to prescriptive easements i.e. acquired through long use.

What has changed as a result of the Act?

• To establish a right post 1 December 2021, a user must be able to demonstrate 20 years of continuous use of the right.  The doctrine of lost modern grant will apply in these instances and the Property Registration Authority of Ireland (“PRA) holds that this right must exist [¹] “without force, without secrecy and without permission”.
• The Act outlined periods for continuous use for property which is state owned which is now 30 years and if the land is foreshore the period is 60 years.
• It is still possible to apply to Court or to the PRAI but this will now be option rather than mandatory.  The rights vest without registration.

What does this mean if you are buying, selling or mortgaging a house?

Pre 2009 Law applies which means where a prescriptive right exists, a property can be sold, purchased and mortgaged on the basis of a statutory declaration setting out periods of user.  If a property is being purchased with the aid of a mortgage and is dependent on an unregistered easement e.g. a right of way, careful consideration will need to be given as many banks may require additional documents from the borrower in order to drawdown the mortgage.

It may be necessary to obtain predecessors in title to prove use for the requisite period noting the appropriate limitation periods, for example where rights are claimed over foreshore or state owned land.

The above only applies in limited cases regarding prescriptive rights but not other types of easements.

If you require any further information on prescriptive easements or profits-a-prendre or any other area of property law, please contact Brendan Sharkey on bsharkey@reddycharlton.ie 

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