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Minister welcomes timely enactment of ‘urgent’ act

Justice minister Helen McEntee has welcomed the passage and enactment of the Land and Conveyancing Law Reform Act 2021, which completed its passage through both Houses of the Oireachtas on Wednesday 24 November, and was signed into law by the President on Friday 26 November. 

The minister said: “I’m delighted to welcome the timely enactment of this urgent act. It averts a legal cliff-edge that was due to occur on 1 December, when major changes to the law on private rights of way, and other prescriptive rights, were due to come into effect.

“I know that those impending changes have been causing worry and stress to many people, with farmers and homeowners at risk of losing important rights that have been enjoyed for many years without dispute. This act repeals those changes, and protects acquired rights and acquired years of use.

Prescriptive easements

Common examples of prescriptive easements include: 

• A right to use water or sewerage pipes, running under a neighbour’s land,
• A right of support between adjoining buildings that have different owners, or
• A private right of way to access one’s home, or field, over a laneway that runs across a neighbour’s land. 

The minister continued: “Legal terms such as ‘prescriptive easements’ or ‘profits à prendre’ can sound very remote and arcane, but in practice, these are issues that have very direct and practical consequences for many people.”

Serious concerns had been raised by stakeholders, including Law Society and the Bar Council, about the changes that were due to take effect on 1 December 2021.

Minister of State James Browne, who steered the legislation through the Seanad, added that he was grateful to the Law Society for its work in highlighting the difficulties.

Claims

As well as repealing the major changes due to take effect on 1 December 2021, under the 2009 act, the Land and Conveyancing Law Reform Act 2021 provides that:

• Claims to validate or register a prescriptive right that are already pending on 30 November (before the courts, or the Property Registration Authority) will continue to be decided as they were before 30 November (as transitional cases, they were decided under the law that applied before the 2009 act),
• Periods of long use that were acquired before or during the years 2009-’21 will not be lost on 30 November if no claim has been made, but can still be counted in a claim made after that date (the clock is not re-set),
• New claims (brought after 30 November 2021) will largely be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 act. This reflects the strong preference expressed by stakeholders, who see these as the most satisfactory and familiar set of rules available, pending more detailed review, and
• It will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. 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.