Registration of Easements and Profits a Prendre – The Dead-Line is Approaching
The enactment of the Land Reform and Conveyancing Act 2009 (“the 2009 Act”) substantially reformed the way in which Easements and Profit a Prendre may be registered under Irish Law.
What is an Easement?
An Easement is the right which one land-owner has by virtue of their ownership of the land, over the land of a neighbour. For example, A right of way, the right of support and shelter or a right to Light.
What is a Profit a Prendre?
A profit a prendre is a right to go on to another persons land and take material from it. For example to graze animals, the right to cut turf or timber, the right to hunt or fish.
Pre 2009 Act
Prior to the enactment of the 2009 Act an easement could be established with 20 years continuous use, with such right becoming absolute after 40 years.
A profit a prendre could be established with 30 years continuous use with such right becoming absolute after 60 years.
In order for a party to assert long use of an easement or profit a prendre, a Statutory Declaration of long user was sufficient prima facie evidence of same.
Post 2009 Act
The 2009 Act changed this acquisition of long user over a substantial period. The 2009 Act provides that an easement or profit a prendre can be acquired after 12 years continuous use as of right without interruption. As of right means without force, secrecy, written/oral consent or interruption.
An exception to this is land that is owned by the State where the time period is a minimum of 30 years. In relation to land which comprises of foreshore, the time period has been extended to 60 years.
In order to register an easement or profit a prendre under the 2009 Act, a party will have to make an application to the Property Registration Authority (“the PRA”), if it is on consent and in the case of a dispute, make an application to the Circuit Court.
Given the significant impact the 2009 Act will have, a transition period of 12 years was provided for to protect those who have either acquired the relevant user period before the 2009 Act was introduced or who were in the course of acquiring it. This means that claims can be brought under the old procedure and user periods prior to 30 November 2021.
What if I do not register prior to 30 November 2021?
The significance of not successfully registering an easement or profit a prendre with the PRA prior to 30 November 2021 means that the user period only begins accruing from the commencement of the Act, which is 1 December 2009. Any additional user period which is asserted before that date will be disregarded. Furthermore, the party attempting to establish the right will need to meet the criteria as outlined in the 2009 Act and will not be able to rely on the previous law.
What should I do next?
If you have carried out investigations and are satisfied that you meet the criteria and time-lines as set down in the 2009 Act, you should immediately make an application to the PRA to have your right registered, if it is on consent with the adjoining land owner.
Where the property is registered land, the application to the PRA is made pursuant to Section 49 (a) of the Registrations of Title Act 1964.
Where the property is unregistered land, a First Registration Application must accompany the application to register the easement or profit a prendre.
In the event that there is an objection lodged to the registration of the right being asserted, the PRA may decline the application for registration, and this can then be appealed to the relevant Court.
At the time of writing, the Law Society Council have reported that a submission has been made to the Department of Justice which has sought an extension to the dead-line of 30 November 2021 and further contact will be made with the Department in this respect.