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Law Society welcomes change in law on easements

The Law Society of Ireland has welcomed Government plans to amend the provisions in the Land and Conveyancing Law Reform Act 2009 relating to rights of way and other easements.

The Minister for Justice Heather Humphreys received approval yesterday (21 September) for the changes, which come after what the Society describes as “extensive engagement” with the Government on the issue in recent months.

This amendment to the act means that easements – such as a right of way, and rights to maintain water and sewerage pipes on neighbouring land – will no longer have to be registered with the Property Registration Authority by 30 November 2021.

The issue was expected to cause a backlog of court cases by those trying to protect their rights to access.

In May, the Society made a detailed submission to the Department of Justice calling for the urgent need to review the law relating to easements. Paddy Sweetman (Convener of the Law Society’s Easements Task Force) said that the Society was pleased to see that its concerns had been heard.

Prescriptive rights of way

The amendments are regarding easements, such as rights of way, held by a property owner over a neighbour’s land, and profits à prendre.

Profits à prendre are other rights over another person’s land, such as fishing or shooting rights, that have been acquired by ‘prescription’, which is by long use as of right, where there is no written deed formally granting the right, or the written deed has been lost.

Prior to the introduction of the 2009 act, prescriptive rights of way were usually verified by simple statutory declarations of long use. 

The 2009 act introduced a new requirement for a prescriptive right to be verified by a court order, and registered with the Property Registration Authority (PRA). 

An amendment to the law, made in 2011, provided that, if the prescriptive right was not contested by the owner of the land affected by it, the claimant could apply directly to the PRA to validate and register their right based on long use. 

The deadline for applications under the old rules made to court, or directly to the PRA, was also extended to 30 November 2021. After that deadline, prescriptive rights could still be validated and registered, but only under new rules taking effect on 1 December.

Minister Humphreys said she knew that the position that was due to apply after 30 November has been a cause of great concern for many.

"I have listened carefully to the concerns raised with me by stakeholders, including the Law Society and the Bar Council," she said.

Deadline

“I am satisfied that, if not addressed, this deadline was likely to lead to a large volume of unnecessary court cases to protect rights which have been enjoyed for generations, and to cause stress between neighbours, unnecessary legal costs, and added court backlogs.

“That is why I am acting quickly to clarify the legal uncertainty that has arisen and to put in place an appropriate solution. The Government has today approved my plans for a short amending bill, to be enacted before the November deadline, which will address the main problems arising in the short term.

"We will remove the major changes to the law on prescriptive easements and profits that were due to take effect on 1 December, thereby removing the imminent deadline."

She added that the move was expected to greatly reduce current conveyancing delays and blockages, which would be a welcome development for purchasers.

To ensure that the legislation can be enacted in good time before the 30 November deadline, the minister intends to seek a waiver from pre-legislative scrutiny, and to seek early signature of the bill by the President.

Reform

The minister also outlined her commitment to more comprehensive reform in this area:

“The amending bill will address the most pressing need by removing the end of November deadline. However, it is clear that more wholesale reform is needed. I intend to establish a time-bound review that will identify the best long-term, sustainable provisions for the law in this area.”

The law applicable to prescriptive easements and profits will largely be reverted to the judge-made law that applied before the 2009 act. 

It will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the PRA – but this will be optional (as it was before the 2009 act), rather than a mandatory requirement to avoid losing any rights acquired through long use.

Applications lodged

Provision will also be made to ensure clarity on the situation of applications already made to court or to the PRA that have been lodged, but not decided, before these changes come into effect.

Public rights of way, and easements (or profits à prendre) held under a written title deed, are not affected by the changes referred to above.