Easement Overview
Easements and Similar Rights
An easement is a property right enjoyed by one property over another, generally an adjoining or neighbouring property. An easement is a burden on the adjoining land over which it applies.
It must benefit the property concerned as such. It cannot be a benefit conferred on the owners or occupiers in a personal capacity. An example is a right of way, which affords access to one property, over another. The right benefits and accommodates the land to which access is afforded and qualifies as an easement.
The categories of easements are not closed. The courts recognise that as society’s needs change, new types of easements may be recognised. In modern times, the courts have recognised the right to use common areas and facilities for recreational purposes The right to park a car is a valid easement.
A Property Right
An easement is a property right in itself. The easement can be transferred and conveyed, although not independently of the land which it benefits.
An easement must be sufficiently certain and capable of definition so that it could be encompassed in a deed. It attaches to the land which is benefitted. It cannot exist separate from the land. Therefore, if the land is sold, the easement must generally pass with the property.
An easement must be registered as a right over the land affected in order to perfect it and make it be valid against all comers, in the same way as a lease or mortgage. An easement acquired or being acquired by use affects registered land without registration.
As with other property rights, an easement may be owned for a freehold or leasehold estate. An easement can be leasehold. This is commonly done where it is necessary to provide for the collection of a service charge and management structure in relation to common facilities.
For example, the right to use common areas in an industrial estate (e.g. service roads, malls and common facilities) may be granted by way of a long lease, which provides for a service charge. This effectively makes the easements conditional on payment of the service charge and compliance with other obligations.
Creation of Easements
Easements can arise in a number of ways. They may be granted by deed made by the owner of the land affected. As with other property rights, the rights will bind the successors of the land affected for the benefit the successors of the land that is benefitted. In this way, the rights affect the land and not just the owners of the land for the time being.
If any person, including the owner of the land affected, interferes with the exercise of the easements (e.g. blocking the right-of-way or cutting service lines) the owner of the easement may take legal action for compensation or for a court order restraining interference with the easement. This is similar to legal action for nuisance or trespass and enables the easement holder to protect and assert the right.
Implication
An easement can arise by implication, although not mentioned in a deed of transfer. An implied easement is only a presumption. The implication may be negated by the clear wording or the circumstances.
Where property is sold and for example, a right of way is necessary over retained land in order to beneficially use and enjoy it, an implied right of way over the land retained by the seller may be implied. The easement must be necessary for the reasonable enjoyment of the land. Easements in favour of buyers will more readily arise on the basis that the seller must not derogate from what he sells.
An implied easement will not readily arise in favour of the seller. An easement of necessity may arise where it is absolutely necessary. This may arise where the land would otherwise be landlocked.
Acquisition by Long Use
In the same way, that title to land can be acquired by long use (squatting) it is possible to acquire an easement by long use. The rules in this area are complicated but had been modernised and simplified in the recent Land law reforms. These were reversed in 2021
When an easement is claimed by reason of long use, it must be established in court proceedings and registered in order to make it a legal easement. Up to this point in time, the easement exists and is capable of being asserted. However, it is subject to certain vulnerabilities.
In order to definitively establish the easement under the 2009 rules, it was to be claimed in court proceedings and be registered in the Land Registry. In effect, it has always been and remains the case that an easement acquired by long use is definitively established by court order.
Generally, an easement can arise where it has been openly exercised “as of right” for twenty continuous years. The use must be open and apparent. Use as of right means that it has been used as if the user had the legal right to do so. If it is used by consent, (e.g. under the terms of a lease from the affected owner), it is not used as of right and no easement is acquired. In the absence of a contract or estoppel, it can be revoked at will.
The 2009 land law reforms lowered the requirement for twenty years of use to twelve years. Longer periods of use are required where the affected land is owned by Government authorities (30 years or more). There are transitional arrangements in force as the relevant period is reduced. Once 12 years of use expires after new legislation comes into force, an easement may be asserted.
An easement acquired or being acquired by long use affects land without being registered. Often, they will be apparent from inspection (e.g. right of way).
Limits
As with acquiring land by squatting, the time limits may not run against the freeholder, while the affected land is leased. Where the affected land is in the possession of a tenant, an easement may be acquired against the tenant after the requisite period. However, his landlord will not be bound unless and until another period (12 /20 years) of use takes place.
Where property is held by a person who is under the age of 18 or of unsound mind, the relevant time period for establishing an easement, will not necessarily run until the affected person is of full age and sound mind. The court can take account of whether it would be reasonable for a guardian or attorney to take action on behalf of the person concerned. After thirty years’ use, the right may be acquired where the court considers it reasonable that steps should have been taken.
An easement may be lost, where it has not been used for twelve years under the 2009 Act. This was repealed in 2021. An easement may be extinguished if it is can be proved that there is an intention to abandon it.
Easement Like Rights
Profits are a category of rights similar to easements. The difference between a profit and an easement is that a profit can exist independently of any adjoining land. Profits are usually found in agriculture. Examples include grazing rights, the right to take turf (turbary), shooting and fishing rights.
Public rights are similar to easements. They are not required to attach to adjoining land and are enjoyed by the public or a class of the public. Public rights may be acquired by long use or custom, in much the same way as easements.
A highway is a road or other way that may be used by the public. A highway may be created by being dedicated as such. Dedication may take place by deed, by symbolic act or behaviour or by presumption. A highway may be presumed to have been dedicated, after a relatively short number of years’ use.
A dedication to the public can arise on the basis of a presumed grant. If a roadway is laid out as such and permitted to be used by the public, a dedication of the roadway to the public will be readily presumed. This may be less than the twelve or twenty years periods required by easements.
Statutory Rights
Planning authorities have the statutory power to create a public right of way.
Most water mains and sewers are vested in the Local Authority. Once vested, the Local Authority has an inherent statutory right to keep them in place, maintain and repair them. They have powers to lay new and renew pipes, drains, wires and cables. These service lines are put in place with statutory authority and this gives them a right to be maintained in place and used for the passage of services.
Local Authorities have powers to enter land lay pipes, drains and cables. Private persons have rights to connect with water mains and sewers, subject to obtaining planning permission and complying with certain conditions. A road opening licence is required to open a road and make the connection. A local authority approved and insured contractor is usually required.
Electricity undertakers have similar powers to create wayleaves compulsorily for the purpose of the transmission of electricity. Fixed-line telephone undertakers have similar rights. Compensation for the putting in place of such rights is usually required.
Most public roadways are vested in and are the responsibility of the Local Authority. National roads are the responsibility of the National Roads Authority. Once the authority takes over the road concerned, it is responsible for the repair, maintenance of the road and street furniture and lighting. The sewers and water mains has a slightly different legal basis, and generally vest automatically in the authority, for public health reasons.
Private Roads
Strictly speaking, a landowner is presumed to own the land fronting onto a road to the centre of the roadway. This ownership is largely of limited value because it relates only to the subsoil and is subject to the rights of the public and the local authority in the roadway. The right of the public is to pass and repass. If they, say picket the property, this is a trespass because it exceeds the deemed consent to pass and repass on the highway.
Certain roads are dedicated as highways but are not or are not yet taken over or “taken in charge” by the local authority. This is because the original landowner, who may be a has laid them out and dedicated them to the public In some cases, this is deliberate and there may exist arrangements by which contributions are made to a service charge to finance the maintenance of roads and services.
In many industrial estates, the internal roadways in common with other facilities and common services are subject to a scheme of management. Often the units in the estate are held under long leases, which provide for service charges and a management structure. Sometimes the units are held freehold but the easement to use the common facilities roads are services are held under long leases. The lease makes the right to use the facilities conditional on payment of the service charge and compliance with the lease covenants.
Roads and services may be used in fact without any legal rights to do so. Practical problems may also arise where there is no scheme of maintenance for a private road and facilities. The services may be used but there may be no means of legally compelling all users to contribute to the cost of maintenance.
In other cases, it may be intended that the road be taken over. There may be a planning permission condition that contemplates that the road be taken over. There may be conditions to be fulfilled and there may be a bond. The local authority has broadly defined duties to take certain roads in charge, but there may be a considerable delay before this is done.
Legal risks can arise in respect of estates which are due to be taken over by the local authority after completion of development. If the original developer does not properly complete the roads, lighting and other infrastructure there may be a delay in taking in charge of the road.
Natural Rights
There are certain types of rights which are similar to easements, but which do not require compliance with the above conditions. Such rights may subsist, even though they do not satisfy the above requirements for an easement. They are sometimes referred to as quasi-easements. A related class of right is a profit a prendre. These right are the subject of other sections.
A natural right is a right inherent in the nature of land. It is protected by tort law (the law of civil wrongs). Rights of support, rights for water and natural rights to light have been categorised as natural rights. There is a right of support for land in its natural state. Irrespective of whether there is an easement which restricts him from so doing, a person cannot undermine his own land to the extent that it causes adjoining land to subside. This would constitute a civil wrong.
Public Rights
Public rights are exercised by the public or by a section of the public, generally. They are not required to be ancillary to any land. Public rights of way may apply for the benefit of a class of the public.
There are more general public rights, for example, highways and navigable rivers. They arise because the lands concerned are dedicated to the public generally.
Local authorities and other bodies have created and dedicated land such as parks, pleasure grounds etc. for the public. Some such bodies are private charities. Local government legislation gives local authorities very statutory powers to provide recreational facilities.
Customary Rights
Customary rights are rights established in a particular district by use since time immemorial. Customary rights must be certain and must not be unreasonable. The right to wander over lands may exist as a customary right. Such rights commonly exist over forested land or along river banks. The right may subsist notwithstanding the absence of dedication.
A custom accrues for the benefit of the inhabitants or a neighbourhood generally. The custom itself must not be unreasonable. It must not unreasonably interfere with the ownership of the land affected, to an unreasonable degree. The custom must be reasonably certain in its extent.
The presumption that the custom has existed from time immemorial is usually proved by showing that it has been enjoyed since prior to living memory. In theory, enjoyment since time immemorial requires use since 11/89. This is largely legal fiction, and 20 years use may be enough unless positive evidence rebutting it earlier existence is advanced. There is an alternative authority that requires longer 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