knowledge 11 January 2022 |

The Land and Conveyancing Law Reform Act 2021: Prescriptive Easements & Rights Revisited

What types of rights are affected by these changes?

Prescriptive easements over land (such as rights of way) and other rights to profit from land (such as sporting rights or rights to take turf) (“profits”) are rights that have come about informally through long and established use as of right (and so by prescription), without formal creation, written agreement or other legal implication. Where there is no deed expressly granting an important right exercised and relied upon by one person over land owned by another, the ability to establish the right exercised as being protected by the law on prescription may be key to a sale, finance or development proposal.

Why are these changes being introduced?

The way in which informally acquired easements and rights over land may be legally established and recognised historically has been legally complex. The Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) sought to simplify the law by introducing new time periods and procedures for the establishment of prescriptive easements and profits. It also introduced a transition period until 30 November 2021 during which prescriptive easements and profits which satisfied the pre-2009 Act rules could be established and registered. However, the provisions of the 2009 Act were widely perceived as upsetting the delicate balance of the law on prescription, with widespread concern, in particular, that a failure to establish and register relevant rights within the transition period could result in rights being lost. This has led to the enactment of the Land and Conveyancing Law Reform Act 2021 (the “2021 Act”).

What does the 2021 Act do?

The 2021 Act repeals the relevant provisions of the 2009 Act with effect on and from 30 November 2021 (the “Effective Date”). As this is before the end of the transition period for the changes proposed by the 2009 Act, the 2021 Act has averted the application of the changes to the law proposed by the 2009 Act and subject to some important exceptions and modifications, re-applies, instead, the common law doctrine of lost modern grant.

This means that where the easement or profit is not capable of being established before the 2009 Act came into effect on 1 December 2009, the establishment of the easement or profit will be governed by the common law doctrine of lost modern grant only, which has evolved to require 20 years use as of standard. The 2021 Act then modifies this to expressly set the required period of use for acquisition of easements and profits over foreshore at 60 years and over lands owned by a State authority otherwise at 30 years. Notably, a State authority is quite narrowly defined as “a Minister of the Government or the Commissioners of Public Works in Ireland”.

As exceptions to this general position, where the easement or profit could be established before the 2009 Act came into effect on 1 December 2009, the acquisition of easements and profits will be governed by the pre-2009 Act law as it applied at that time (involving a choice of three methods of which the doctrine of lost modern grant was one). Also, any proceedings or applications under the 2009 Act already made on the Effective Date to claim or register easements or profits are unaffected by the 2021 Act.

How is the concern around loss or extinguishment of rights dealt with under the 2021 Act?

Importantly, a failure to register rights no longer carries with it a risk of extinguishment, but this doesn’t mean that the risk of loss or extinguishment has been removed altogether. The 2021 Act repeals those provisions of the 2009 Act that set statutory rules for the extinguishment of easements and profits acquired by prescription (or implication), declaring the old rules of common law to apply. Notably, those common law rules include (among others) a presumption of abandonment after a long period of non-use or where an alternative right has been granted.

Can prescriptive easements and profits still be registered in the Land Registry?

The process for registration of easements and profits in the Land Registry under s49A Registration of Title Act 1964 (“s49A”), which was introduced in conjunction with the 2009 Act, remains open and available, but has been modified by the 2021 Act to take account of the repeal of the relevant 2009 Act provisions and extended to apply to profits in gross (ie profits not held for the benefit of land). However, the overall merits of an application for registration would need to be considered on a case by case basis, taking into account, among other factors, the potential for the application either to lead to dispute or to compromise other potential claims in respect of the same easements or profits.

Conclusion

Overall, a preservation of the status quo for the law on prescription has been achieved by the 2021 Act, including, importantly, that rights are not lost through a failure to register. Only the greater protections in terms of required use periods envisaged by the 2009 Act for lands owned by a State authority and foreshore in particular have been salvaged from the 2009 Act proposals for reform of the law. We are left with the application of the doctrine of lost modern grant, which, though established and familiar, doesn’t necessarily give the certainty in terms of reliance or reliability that a statutory registration-based regime would ultimately give. In that sense and until the law is reviewed again without pressure of time, our sense is that we are not left with the perfect, but with the pragmatic.