The Conveyancing Committee published a practice note entitled ‘Rights of way and other easements after 2021’ in the May 2018 eZine and the June 2018 Gazette, the purpose of which was to allay concerns regarding the registration of prescriptive easements in the Land Registry prior to 1 December 2021. The practice note confirmed that all that changes after that date is the basis on which an application to register a prescriptive easement may be made to the PRAI or the court. That practice note relates to the new prescriptive period of 12 years, introduced under section 49A of the Land and Conveyancing Law Reform Act 2009 as inserted by section 41 of the Civil Law (Miscellaneous Provisions) Act 2011. The committee published a further practice note entitled ‘Implied easements’ in the November 2020 eZine and the December 2020 Gazette.

However, under the Land and Conveyancing Law Reform Act 2009, and with effect from 1 December 2009, the period for acquiring a prescriptive right over State land is 30 years, and over foreshore it is 60 years.

One interpretation of the legislation is that, where a person has exercised an easement by prescription over State land or foreshore prior to 1 December 2009, and regardless as to how long they have exercised it for, they will not be able to apply for registration of that easement in the Land Registry until the right has been enjoyed for the full period specified under the 2009 act. In effect, the clock will be reset as of that date, and the entire period prior to 1 December 2009 will be disregarded, even where the right has been enjoyed for decades or centuries.

If that interpretation is correct, then after 1 December 2021, no application to register a prescriptive easement in the Land Registry over State land could be made until 30 years after 1 December 2009 (that is, until 2039). In respect of foreshore, an applicant would need to wait until 2069. Another interpretation of the legislation is that there is a presumption against retrospective application of a law that would deprive a person of property rights and, accordingly, the act cannot set aside substantive rights already acquired (at least not without a compensation regime). Under this interpretation, a right that has crystallised prior to 1 December 2009 under the doctrine of lost modern grant is not affected by the abolition of the doctrine.

It will require a court decision, or amending legislation, to determine these issues.

Applications to the PRAI to register prescriptive rights are made in non-contentious situations. Please refer to the separate practice note (p57) issuing at the same time as this one, which deals with such applications.

The Conveyancing Committee suggests that the most prudent guidance for solicitors to give to their clients who consult them in connection with prescriptive rights over State land or foreshore is to proceed to institute all necessary proceedings, or make any necessary application to the PRAI as soon as practicable and, in any event, in advance of 1 December 2021.