Nature & Burden Cast
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).
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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.
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