Acquired by Long Use
Long Use/Prescription.
An easement may be acquired by long use. This is analogous to the process by which title to land is acquired by adverse possession (squatting).
The law on the acquisition of easements by long use (or prescription) was reformed and modernised in 2009. The 2009 reforms were reversed in 2021. An easement may be acquired under the doctrine of loss modern grant only. See the separate chapter on these Acts.
The 2009 reforms required that a person who seeks to establish an easement by long use must apply to the court or to the Land Registry in order to establish a new prescriptive easement. Easements were to be perfected by registration of the court or Land Registry order.
Easements and profits other than those created by express grant or reservation after first registration affect registered land without registration.
A court order or application under the Registration of Title Act to establish an easement by prescription is a registrable burden. Accordingly, it must be registered in order to bind registered title land.
Arising in Litigation
In most cases, the prescriptive easement is known and accepted by all relevant parties. No legal action is necessary, as the facts and circumstances are such that the easement’s existence appears to be clearly established. No legal action is necessary, as the facts and circumstances are such that the easement’s existence appears to be clearly established. Under the doctrine of lost modern grant, it can be established in litigation as and when the issue arises.
An easement acquired by prescripion or being acquired by prescription, binds third-party purchasers of the land. It is protected without registration in the Land Registry. Easements and profits à prendre, unless they are respectively created by express grant or reservation after the first registration of the land, bind land without being registered.
The entitlement to an easement will often arise as a claim or a defence in legal proceedings. This may arise where a person seeks to restrain an alleged trespass. The party exercising the alleged easement may claim that a valid easement exists so that there is no trespass, nuisance or other actionable wrongs. A claimant may assert the easement and seek to establish it in order to clarify his entitlement.
Common Law
At common law, an easement could be asserted if it had been used since time immemorial. This was defined as the year 1189, by statute. It was necessary, at least notionally to show under this principle that the easement had been used continuously since this time.
The position was not as onerous as first appears, as the easement was presumed to be used since time immemorial, on proof of 20 years’ use. However, this claim could be rebutted by showing that the easement could not have been used continuously since 1189.
In many cases, it was and is possible to prove that an easement could not have existed for over 800 years. For example, a building, subject to a claim to a right to light, could easily be shown to less than this age. Similarly, landholdings paths could be shown by reference to maps, to have a more modern origin.
Lost Modern Grant
20 years’ use was presumed to be sufficient to show that the easement was based on a grant which had been made since 1189, but which had been since lost. The presumption could be rebutted by proof that the grant could not have been made or was not in fact made.
Because prescription at common law was easily rebutted, another legal fiction was created; that of a “lost modern grant”. The 2009 reforms were reversed in 2021. Prescription by lost modern grant has been preserved as the sole means of acquiring an easement by long use under the 2021 Act.
This method of acquisition is based on a fiction that the continuous use is based on a lost deed of grant at some time in the past. This method of acquisition had the advantage over the Prescription Act and the 2009 reforms that the use did not necessarily have to be immediately before the legal action in which it is established. Therefore, the acquisition can be based on 20 years of continuous use at some point in the past.
The principle of lost modern grant might have had required 20 years only even in the cases where the Prescription Act 1832 required 30 or 60 years use. However, the 2021 Act confirms 30 and 60 years’ use respectively are required against a public authority in respect of the foreshore.
General Principles
The general principles applicable to the acquisition of an easement by long use apply in respect of an easement acquired under the doctrine of lost modern grant. The use must be as of right. This follows from the fiction that it is based on a deed of grant and is exercised as if such a grant exists.
The court will look at the particular circumstances and the nature and origin of the use in order to consider whether it can fairly be said to be exercised as of right. Exercise as of right presupposes that it is without force, without permission and without secrecy. These are elements that potentially negate the claim based on a fictional modern grant.
An easement of light was subject to special treatment under the Prescription Act. It does not appear to be subject to this treatment under the doctrine of lost modern grant.
As of Right
Exercise as of right implies that it is peaceful and not based on force, violence or fear on the part of those affected. Continuous contention and disputes would be inconsistent with this requirement. Mere passive, silent resistance is unlikely to be enough.
The owner of the land affected cannot simply claim that he objected to the use simply by denying the right. Some assertion of the claim, which is countered by resistance, is usually required. The courts have taken different views as to the degree of resistance and force that might be required to prevent the exercise from being as of right.
The use must be open and apparent. Secret use does not suffice. In effect, the owner of the servient land must have the opportunity to deny the legitimacy of the use. Otherwise, an easement might be acquired wholly unknown or to the servant owner.
It is not necessary to prove that the servant owner has actual knowledge of the use. The courts may deduce that he must have or should have had knowledge. The degree of use must be such that an ordinary owner of the land who is diligent in protecting his interest would have had a reasonable opportunity to be aware of the use.
The exercise of many easement rights will be apparent and evident. Other easement rights, for example, relating to water, pipes or support, may be less apparent. The fact that the exercise is not apparent does not mean that the test will be failed. The courts appear willing to impute knowledge having regard to the character and nature of the type of easement involved. The knowledge need not be continuous throughout the period of use. If a predecessor was aware of the use, this might be sufficient. Even if the user is occasional and infrequent, the test may still be satisfied.
Not by Consent
Use by permission or consent negates use as of right. Use under a lease or licence is not use as of right. The use derives from that consent. A lease or licence is entirely fatal to a claim of an easement against a landlord. The use is exercised under the lease or licence and not under a lost modern grant.
Questions may arise as to whether consent has been given and, if so, the extent of that consent. The court will consider the nature of the consent. Consent can usually be withdrawn. However, if a person acts on foot of a representation, and for example, incurs substantial expenditure, then the courts may be prepared to apply the doctrine of estoppel and find that there is a perpetual licence akin to an easement where it would be unjust to deny the same.
Use that is permissive and by consent in origin may continue so for a long time and prospectively indefinitely. Difficult questions can arise as to whether the consent was for a period and thereafter expired.
Consent Issues
Difficult issues can arise as to whether mere toleration or tacit consent is sufficient to deny a grant or acquiescence in a grant. The line can be very thin. The courts do not generally allow tacit toleration as sufficient to negate use as of right and thereby deny an easement as of right. Consent requires more than standing by.
A right that was initially by consent may come to be as of right when the consent has been withdrawn or no longer applies. Conversely, use that appear to be as of right could come to be used by consent, where the circumstances lead to the inference that this is what has occurred.
A difficult issue is whether the servient owner can purport to give consent which is not requested. This depends on the circumstances. The court considers whether the subsequent exercise of the right is on the basis of consent or not.
There is some authority in recent times for the proposition that unrequested permission can negate the acquisition of an easement based on the doctrine of lost modern grant. Other cases take the opposite view. It depends on the circumstances.
Continuous
Use must be continuous. It need not be at all times. Under the doctrine of lost modern grant, it appears to be sufficient that the 20 years of continuity happened at some point in the past. The continuity should be such that it was apparent to the servient owner that the person exercising the right appears to exercise it as it of right.
Very occasional use such as once or twice a year may not suffice. It should be reasonably uniform and apparent as such. The critical issue was whether the servient owner could or should apprehend sufficient continuity, such that the right appears to be exercised as if by a grant.
The use need not be incessant. It depends on the circumstances as to the extent of inactivity or breaks in continuity that may fail to meet the test.
Interruption of the use may break continuity. This is a statutory requirement in respect of the former position under the Prescription Act. Interruption implies a break or prevention of enjoyment, usually by the servient owner. Under the Prescription Act, the question arose as to whether the interruption was submitted to or acquiesced in for a year after the interruption came to the attention of the person exercising the easement or the identity of the person so interrupting. Questions of interpretation can arise in relation to the interaction between interruption and continuity.
Applications to Establish
An easement or profit can be established by an action or an application to the Land Registry. The court could make an order declaring the existence of the easement if it is satisfied that there has been the relevant use during the period before the commencement of the action.
A 2011 Amendment empowered the Land Registry (now the Property Registration Authority) to make the order in a non-contested case. They applied the old rules until 1st December 2021. Following the 2021 Act, the old rules continue to apply and the power of the court or Land Registry to establish the easement was retained.
The court / and Registry may make an order even if the relevant use was not immediately before the action if it is satisfied it is just and equitable in the circumstances. Once a court order is obtained, it is necessary to register it in the Land Registry or Registry of Deeds (as appropriate) in order to perfect and establish the right as a legal easement.
A person claiming an easement or profit must either apply to a court for an order confirming the entitlement or must apply for registration to the Property Registration Authority. Where the PRAI is satisfied that the entitlement exists, may cause it to be registered as a burden on the folio. This is broadly similar to the section provision allowing for registration of squatters rights in the Land Registry in relatively clear and uncontested cases.
References and Sources
Primary Texts
Easements Bland 2nd Edition 2015
Wylie on Irish Land Law Wylie 6th Edition 2020
Land Law In Ireland -Lyall 4th Edition 2018
Principles Of Irish Property Law de Londras 2nd Edition 2011
Equity and the Law of Trusts in Ireland- Keane 3rd Edition
Land Law Kenna & Murphy 2019
Land Law Pearce & Mee 3rd Edition 2011
Other Irish Sources
The Land and Conveyancing Law Reform Act 2009: Annotations and Commentary -Wylie 2nd Edition 2017
Property Legislation 2009 2011 Cannon, Clancy, Kenna 2012
Irish Land Law – A Casebook: Adanan Maddox 2020
A Casebook on Equity and Trusts in Ireland – Wylie
Shorter Guides
Land Law Nutshell Cannon 2020
UK Textbooks
Land law C. Bevan 2nd ed.2020
Land Law: Text, Cases and Materials B McFarlane, N Hopkins and S Nield, (4th ed. OUP 2018)
Property Law R Smith(10th ed., Pearson, 2020)
Cheshire and Burn’s Modern Law of Real Property by Burn, E. H. 2011
Modern Land Law Dixon 2018
Elements of Land Law Gray, 2009
Property law: cases and materials Smith 2015
Land law Cooke 2015
The Limitation of Actions, 2nd ed Brady and Kerr 1994