Granted & Implied
The Land and Conveyancing Law Reform Act 2009
PART 8
Appurtenant Rights
Chapter 1
Easements and profits à prendre
Annotations:
Editorial Notes:
E8
Application procedure for registration of an easement or profit à prendre pursuant to ss. 33 to 38 prescribed (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rl. 46, in effect as per rl. 1; as substituted (1.11.2013) by Land Registration Rules 2013 (S.I. No. 389 of 2013), rl. 2, in effect as per rl. 1(4).
E9
Entitlement of persons who claim to be entitled to an easement or profit à prendre and who meet the requirements of ss. 33 to 38 to apply to the Property Registration Authority and power of Property Registration Authority to register such easement or profit à prendre provided by Registration of Title Act 1964 (16/1964), s. 49A, as inserted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 41, commenced on enactment.
Interpretation of Chapter 1.
33.— In this Chapter, unless the context otherwise requires—
“dominant land” means land benefited by an easement or profit à prendre to which other land is subject, or in respect of which a relevant user period has commenced; and “dominant owner” shall be read accordingly and includes that owner’s predecessors and successors in title;
“foreshore” has the meaning given to it by section 2(1) of the Act of 1957;
“interruption” means interference with, or cessation of, the use or enjoyment of an easement or profit à prendre for a continuous period of at least one year, but does not include an interruption under section 37 (1);
“period of non-user” means a period during which the dominant owner ceases to use or enjoy the easement or profit à prendre;
“relevant user period” means a period of user as of right without interruption by the person claiming to be the dominant owner or owner of profit à prendre in gross—
(a) where the servient owner is not a State authority, for a minimum period of 12 years, or
(b) where the servient owner is a State authority, for—
(i) a minimum period of 30 years, or
(ii) where the servient land is foreshore, a minimum period of 60 years;
“servient land” means land subject to an easement or profit à prendre, or in respect of which a relevant user period has commenced; and “servient owner” shall be read accordingly and includes that owner’s predecessors and successors in title;
“State authority” means a Minister of the Government or the Commissioners of Public Works in Ireland;
“user as of right” means use or enjoyment without force, without secrecy and without the oral or written consent of the servient owner.
Abolition of certain methods of prescription.
34.— Subject to section 38, acquisition of an easement or profit à prendre by prescription at common law and under the doctrine of lost modern grant is abolished and after the commencement of this Chapter acquisition by prescription shall be in accordance with section 35.
Acquisition of easements and profits à prendre by prescription.
35.—F2[(1) An easement or profit à prendre may be acquired at law by prescription—
(a) on registration of a court order under this section, or
(b) in accordance with section 49A of the Act of 1964. ]
[PA 1832]
[PA 1858]
(2) Subject to subsection (3), in an action to establish or dispute the acquisition by prescription of an easement or profit à prendre, the court shall make an order declaring the existence of the easement or profit à prendre if it is satisfied that there was a relevant user period immediately before the commencement of the action.
(3) The court may make an order under subsection (2) where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all the circumstances of the case.
(4) An order under subsection (2) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
Annotations:
Amendments:
F2
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 37, commenced on enactment.
Tenancies.
36.— (1) Where the dominant owner acquiring an easement or profit à prendre under section 35 owns a tenancy only in the dominant land, the easement or profit à prendre attaches to that land and when the tenancy ends, passes to the landlord.
[PA 1832, s. 8]
(2) Where an easement or profit à prendre is acquired under section 35against a servient owner who owns a tenancy only in the servient land, it ends when that tenancy ends, but if the servient owner—
(a) acquires a superior interest in the land, the easement or profit à prendre attaches to the superior interest,
(b) obtains an extension or renewal of the tenancy, the easement or profit à prendre continues to attach to the land for the period of that extension or renewal.
(3) Nothing in subsection (2) prevents the subsequent acquisition of an easement or profit à prendre under section 35 on the basis of a new relevant user period against a landlord who takes possession of the servient land after the tenancy ends.
Incapacity.
37.— (1) Subject to subsection (2), where the servient owner is incapable, whether at the commencement of or during the relevant user period, of managing his or her affairs because of a mental incapacity, the running of that period is suspended until the incapacity ceases.
[PA 1832, s. 7]
(2) Subsection (1) does not apply where—
(a) the court considers that it is reasonable, in the circumstances of the case, to have expected some other person, whether as trustee, committee of a ward of court, an attorney under an enduring power of attorney or otherwise, to have acted on behalf of the servient owner during the relevant user period, or
(b) at least 30 years have elapsed since the commencement of the relevant user period.
Application of sections 34 to 37.
38.— In relation to any claim to an easement or profit à prendre made after the commencement of this Chapter, sections 34 to 37—
(a) apply to any claim based on a relevant user period notwithstanding that it is alleged that an additional user period occurred before that commencement,
(b) do not apply to any claim based on a user period under the law applicable prior to the commencement of this Chapter and alleged to have commenced prior to such commencement where the action in which the claim is made is brought F3[within 12 years] of such commencement.
Annotations:
Amendments:
F3
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 38, commenced on enactment.
Extinguishment.
39.— (1) On the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by—
(a) prescription, or
(b) implied grant or reservation,
the easement or profit à prendre is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.
F4[(1A) Subsection (1) does not affect the exercise by the Property Registration Authority of the power to modify or cancel any entry in accordance with section 69(4) of the Act of 1964. ]
(2) This section applies to extinguishment of an easement or profit à prendre notwithstanding that it was acquired before the commencement of this Chapter, provided at least 3 years of the period of non-user occur after such commencement.
(3) Nothing in this section affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.
Annotations:
Amendments:
F4
Inserted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 39, commenced on enactment.
Implied grant.
40.— (1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).
(2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which—
(a) is necessary to the reasonable enjoyment of the part disposed of, and
(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.
(3) This section does not otherwise affect—
(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,
(b) the operation of the doctrine of non-derogation from grant.
Land and Conveyancing Law Reform Act 2021
An Act to amend the law relating to the acquisition of easements and profits à prendre
by prescription; to repeal certain provisions of the Land and Conveyancing Law Reform
Act 2009, including section 39 of that Act relating to the extinguishment of easements
and profits à prendre; to amend the Registration of Title Act 1964; and to provide for
related matters. [26th November, 2021]
Be it enacted by the Oireachtas as follows:
Definitions
1. In this Act—
“Act of 2009” means the Land and Conveyancing Law Reform Act 2009;
“foreshore” has the meaning assigned to it by section 1 of the Foreshore Act 1933;
“relevant date” means the 1st day of December 2009, being the date on which Chapter 1
of Part 8 of the Act of 2009 came into operation;
“State authority” means a Minister of the Government or the Commissioners of Public
Works in Ireland.
Amendment of law relating to acquisition
of easements and profits à prendre by prescription
2. Notwithstanding section 34 (repealed by section 6(1)) of the Act of 2009, an easement or
profit à prendre may be acquired by prescription in the following manner:
(a) in a case where the prescription period was completed before the relevant date, in
accordance with the law that applied to the acquisition of an easement or profit à
prendre by prescription before the relevant date;
(b) subject to section 3(1), in a case where the prescription period was not completed
before the relevant date, in accordance with the doctrine of lost modern grant as it
applies at common law.
Additional provisions
relating to acquisition of easements and profits à prendre by prescription
3. (1) (a) Subject to subsection (2), where a claim to an easement or profit à prendre is
made in respect of land which is owned by a State authority, the prescription
period under the doctrine of lost modern grant shall be—
(i) any period of 30 years, or
(ii) where the land is foreshore, any period of 60 years,
unless the easement or profit à prendre had been acquired before the land was
owned by that State authority or any other State authority.
(b) Subject to subsection (2), where a claim to an easement or profit à prendre is
made in respect of land which was foreshore and has ceased to be foreshore but
remains in the ownership of the State, the prescription period under the doctrine
of lost modern grant shall be—
(i) any period of 60 years, or
(ii) any period of 30 years after the land ceased to be foreshore,
at the election of the person making the claim.
(2) Subsection (1) shall not apply to a claim that falls under section 2(a).
Extinguishment of easements and profits à prendre
4. It is hereby declared for the avoidance of doubt that section 39 (repealed by section 6(1))
of the Act of 2009 was without prejudice to the application of the common law with
regard to the extinguishment of an easement or profit à prendre howsoever or whenever
acquired and, accordingly, the common law shall apply to such extinguishment.
Amendment of section 49A of Registration of Title Act 1964
5. Section 49A (inserted by section 41 of the Civil Law (Miscellaneous Provisions) Act
2011) of the Registration of Title Act 1964 is amended by—
(a) the substitution of the following subsection for subsection (1):
“(1) Where a person claims to be entitled to an easement or profit à
prendre by prescription, the person may apply to the Authority and the
Authority, if satisfied that there is such an entitlement to the easement
or profit à prendre may, subject to subsections (2) and (3), cause it, as
may be appropriate, to be—
(a) registered as a burden under section 69(1)(jj), or
(b) entered in the register pursuant to section 82 or, in the case of a
profit à prendre in gross, in the register of ownership maintained
under section 8(b)(i),
or both.”,
Short title, construction and commencement
7. (1) This Act may be cited as the Land and Conveyancing Law Reform Act 2021.
(2) This Act (other than section 5) and the Land and Conveyancing Law Reform Act 2009
shall be construed together as one Act.
(3) This Act shall come into operation on the 30th day of November 2021.
Pre-2009 Legislation
Conveyancing Act 1881
6. – (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, com mons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to apper tain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages, whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, or other buildings, conveyed, or any of them, or any part thereof.
(3) A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quit-rents, rentscharge, rents seek, rents of assize, fee farm rents, services, royalties, jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and here ditaments whatsoever, to the manor appertaining or reputed to appertain, or at the time of conveyance demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof.
(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained.
(5) This section shall not be construed as giving to any person a better title to any
property, right, or thing in this section mentioned than the title which the con veyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying
– .
( 6) This section applies only to conveyances made after the commencement of this Act.
62. – (1) A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty, or privilege in, or over, or with respect to that land, or any part thereof, shall operate to vest in possession in that person that easement, right, liberty, or privilege, for the estate or interest expressed to be limited to him; and he, and the persons deriving title under him, shall have, use, and enjoy the same
accordingly.
(2) This section applies only to conveyances made after the commencement of this Act.
II. RENTCHARGES
LAW OF PROPERTY (AMENDMENT) ACT, 1859
10. The Release from a Rentcharge of Part of the Hereditaments charged therewith
•hnll not extinguish the whole Rentcharge, but shall operate only to bar the Right to recover any Part of the Rentcharge out of the Hereditaments released, without Prejudice nevertheless to the Rights of all Persons interested in the Hereditaments rcmuining unreleased, and not concurring in or confirming the Release.
CONVEYANCING ACT, 1881
5. – (1) Where land subject to any incumbrance, whether immediately payable or not, is sold by the Court, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land, of such amount as, when invested in Government securities, the Court considers will be sufficient, by means for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon; but in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason thinks fit to require a larger additional amount.
(2) Thereupon, the Court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.
(3) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.
(4) This section applies to sales not completed at the commencement of this Act, and to sales thereafter made.
44. – (1) Where a person is entitled to receive out of any land, or out of the income of any land, any annual sum, payable half-yearly or otherwise, whether charged on the land or on the income of the land, and whether by way of rentcharge or otherwise, not being rent incident to a reverion, then, subject and without prejudice to all estates, interests, and rights having priority to the annual sum, the person entitled to receive the same shall have such remedies for recovering and compelling payment of the same as are described in this section, as far as those remedies might have been conferred by the instrument under which the annual sum arises, but not further.
(2) If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid.
(3) If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possesion of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by nonpayment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste.
(4) In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed demise the land charged, or any part thereof,to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, for all or any part of the term, of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed; and the surplus, if any, of the money raised, or of the income received, under the trusts of that deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.
(5) This section applies only if and as far as a contrary intention is not expressed
in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
(6) This section applies only where that instrument comes into operation after the commencement of this Act.