Pre-2021 Act Rules
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.
The doctrine of lost modern grant evolved to get around this fiction. It has been preserved as the method of acquiring an easement under the 2021 Act, at least until more comprehensive reforms are made. Prior to 2021, acquisition at common law, under the doctrine of lost modern grant were three alternative method of acquisition by prescription. Each had advantages and limits, due to their particular rules.
Prescription Act
The Prescriptions Act 1832 was extended to Ireland. This sets out a more satisfactory, but highly technical and anomalous method of establishing an easement. The 1832 Act was repealed by the 2009 Act, but not reinstated by the 2021 Act. It applies to easements where the relevant period was completed before 1st December 2009. However it was required that it be claimed in proceedings where the use predated the application.
The general principles applicable to easements by prescription must be satisfied. The right must be capable of being an easement, must be open, continuous, not by permission etc.
The prescription legislation provided for differing rules for easements of light, profits a prendre and other easements. The Prescriptions Act provided for two classes of easement, one involving the acquisition by a shorter 20-year period of use and another involving a longer 40-year period of use.
Prescription Act Period
In the case of most easements, the shorter period is 20-years. In the case of profits, it is 30 years. Use for the shorter period cannot not be defeated by showing that use began after 1189 and before the start of the relevant 20-year period. However, a claim can be defeated by proving an interruption for a period of a year as set out below.
If the use has been for 40-years (in the case of a profit, 60 years), them where the requisite continuity of use has been proved, the easement is deemed absolute and indefeasible. Unlike the case of use for the 20 year/30 year period, it cannot be defeated by being enjoyed by verbal consent. It could be defeated by showing that it was enjoyed with the written consent. Certain deductions from the period might apply.
In both cases, the relevant use must continue up to the commencement of the legal action taken to assert the easement claim. An interruption is not deemed to be legally effective for the purpose of deduction, unless it has been submitted to or acquiesced in, for one year after the interruption, and he has had notice thereof and of the person making or authorising the interruption.
Interruptions and Deductions
An interruption involves an actual cessation of the use. This may, for example, include the placing of a barrier across a roadway. An interruption is stopped, provided the party claiming the easement objects to and does not acquiesce in it.
The Prescription Acts provided for deductions from the period of enjoyment. Periods when the owner of the land affected was a minor, mentally ill or tenant for life, were to be deducted in the calculation of the shorter (20/30 year) period. Any period during which an action is being diligently prosecuted until abated by death is also excluded.
This last mentioned provision does not apply where the land affected is held under a lease. In the case of easements other than light and profits, there is a deduction from the longer period while the land affected is held by a tenant for life or any lease for a term of more than three years, provided that the claim was resisted by the landlord within three years of the expiry of the term.
In the case of easements of light, easement rights actually enjoyed for a 20-year period without interruption, are deemed absolute and indefeasible, unless it was shown to be enjoyed by consent or agreement made in writing. A verbal consent did not defeat the claim. There are no deductions on the basis mentioned above.
2009 Act Reforms
The 2009 Act entirely replaced the above rules for actions taken after December 2012, and later 1st December 2021. On one interpretation, the older rules continued to apply for 12 years after the creation commencement of the 2009 land law reforms. The position was clarified by legislation passed in 2013.
However, the 2009 reforms were reversed on 30th November 2021 because of perceived impracticalities. In effect, its rules never applied.
A minimum of 12 years’ continuous use only, had been required under the new legislation. Where the land affected is owned by a state authority, this period is increased to 30 years. A 60-year period applies where the land is foreshore/beach. The latter periods of acquistion were retained by the 2021 appeal.
2009 Act Requirements
Most of the 2009 requirements restated the existing and now, continuing law. The enjoyment must be as of right. This is defined as use or enjoyment without force, secrecy and without oral or written consent. Accordingly, the general principles set out above, continue to apply. The rules applied equally to all categories of easements.
The enjoyment must be as of right. This was defined as use or enjoyment without force, secrecy and without oral or written consent. The rules apply equally to all categories of easements.
There were new provisions in respect of interruption and deduction. The relevant period meant the period of use without interruption, by the claimant in the litigation or application. Interruption meant interference with or, cessation of the use or enjoyment of an easement or profit for a continuous period of at least one year.
Interruption must be actual interference. It was no longer necessary that the claimant has submitted to, or acquiesced in it. There was no requirement that the party concerned has notice of the interruption and of the identity of the person making it. The interruption must be continuous for at least a year.
Deductions were permissible where the owner of the land concerned is incapable, whether at the commencement or during the relevant period, of managing his affairs due to mental capacity. In this case, the suspension lasts until the incapacity ceases.
This deduction did not apply if at least 30 years have elapsed since the commencement of the use or the court considered it reasonable in the circumstances of the case to have expected some other person whether as committee of a ward, trustee, attorney under an enduring power, to have taken action on behalf of the owner.
If the land benefited was held under a tenancy, the easement or profit attached to the land and passes to the landlord after the tenancy. If the land affected was held under a tenancy or lease, the easement or profit ended once the tenancy ends, but attached to any renewal or extension of the tenancy or to any superior interest acquired by the owner of the land affected.
Where the tenancy ended against which the easement of profit had been acquired, the relevant right could be acquired again against landlord but only after a new period of 12 years of use had elapsed against the landlord in possession.
Applications to Establish (Retained)
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.
Transitional Period
There was a 12-year transitional period from the 1st December 2009 to 30th November 2021 under the 2009 legislation. The older methods had been abolished as methods of acquiring easements after 1st December 2021. However the 2021 reversed the reforms and reinstated most of the pre-2009 Act rules.
It was possible to take action within three years of that date to establish an easement based on these older principles. The 12-year period applied to claims based on periods commencing after the 2009 Act. After 1st December 2021, an easement was to be acquired on the basis of the new rules.
2021 Act
The Land and Conveyancing Law Reform Act 2009 changes were causing serious concern. The requirement for mandatory registration of prescriptive easements or profits à prendre, had not been operating satisfactorily in practice. It was not possible to register many important prescriptive rights, which appearedto have been enjoyed for many years without dispute
The purpose of the 2021 Act was is to avert the statutory deadline, by repealing the major changes due to come into effect immediately after 30 November 2021. The 2021 Act covers prescriptive easements and profits, and not those under a written title deed..
The Minister secured Government approval to establish a time-bound review that will identify any further changes that are desirable to the law on prescriptive easements and profits, in order to ensure that this area of law is placed on a sustainable long-term basis.
The 2009 Act, contained new statutory rules on extinguishment of easements and profits. They were repealed by the 2021 Act. The 2009 Act was without prejudice to the application of common law rules on extinguishment to easements and profits à prendre, and those rules continued to apply, following the repeal, and were given new life by the 2021 Act.
Applications 2009-2021
Prior to the introduction of the 2009 Act, prescriptive easements or profits à prendre were usually verified by simple statutory declarations of long use. The 2009 Act introduced a new requirement for a prescriptive easement or profit to be verified by a court order, and registered with the Property Registration Authority (PRA).
Amendments in 2011, added that, if the prescriptive right was not contested by the owner of the land affected by it, the claimant could, as an alternative, apply directly to the PRA to validate and register their right based on long use, without requiring a court order.
During the transitional period, applications to court, or to the PRA, could still be decided based on the old rules – the law as it stood before the 2009 Act came into operation. In 2011, the deadline for making these transitional applications was extended to 30 November 2021. After that deadline, prescriptive rights could still be validated and registered, but only under the new legal rules that were due to take effect on 1 December 2021.
Failure to register the right before that date could mean that years of established use would no longer be taken into account, and only use after 30 November 2021 would count in validating a prescriptive right.
Rules Applicable
In a case where the prescription period was completed before 1 December 2009 – the legal rules to apply are those that applied to acquisition of prescriptive easements or profits before 1 December 2009. In a case where the prescription period was completed after 1 December 2009 – the legal rules to apply are the judge-made rules known as the doctrine of lost modern grant.
The doctrine of lost modern grant is one of three alternative sets of rules on acquisition of prescriptive easements and profits that applied before the 2009 Act (the others being common law prescription, and statutory prescription under the Prescription Act 1832).
The 2009 Act repealed the Prescription Act, while section 34 of the 2009 Act abolished common law prescription and the doctrine of lost modern grant. However, all three sets of rules continued to be available under the 2009 Act on a transitional basis, up to 30 November 2021.
State Land 30 Years
A prescriptive easement (or profit à prendre) over land that is owned by a State authority (including land that is foreshore) – other than pending applications, or claims where the prescription period was completed before 1 December 2009. In such claims against State-owned land or foreshore, longer prescription periods will apply – the claim may be based on any period of 30 years, against State owned land, or any period of 60 years, if the land is foreshore.
Preserved Provisions
The 2009 Act clarified the rules relating to implied grant of easements and profits à prendre. This was not repealed.
Applications to court, or to the Property Registration Authority, that were pending when the 2021 Act came into operation were not affected,
- any proceedings in which a claim is made to an easement or profit à prendre by prescription, or
- any application made under section 49A of the Registration of Title Act 1964 to register an easement or profit à prendre, including claims made under the pre-2009 Act law, based on a prescription period that began before 1 December 2009, and which were brought within 12 years of that date)
Court or PRA Application
Section 49A of the Registration of Title Act 1964 provided for a person claiming to have acquired an easement or profit à prendre by prescription, to apply directly to the Property Registration Authority to prove and register their prescriptive right, without needing to issue court proceedings, if the owner of the affected land agrees.
The 2021 Act removed the condition that the Authority must be satisfied that the claim meets the requirements set out in the 2009 Act, and also clarify the conditions for registering a claim regarding a profit à prendre in gross. It is still possible to validate a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. This is optional, rather than a mandatory requirement to avoid losing any rights acquired through long use.
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