Law of the land

The Land and Conveyancing Law Reform Act 2021 repeals sections 33 to 39 of the previous act and sets out the law that now applies to the acquisition of prescriptive easements and profits. Denise Healy assesses the lie of the land

The Land and Conveyancing Law Reform Act 2009 introduced very significant amendments to the law on the acquisition of easements and profits à prendre by prescription.

An amendment to section 38 of the act made by the Civil Law (Miscellaneous Provisions) Act 2011 provided that landowners claiming entitlement to easements or profits acquired by prescription could continue to rely on the law in existence prior to 1 December 2009 (the old law) until 30 November 2021.

The Land and Conveyancing Law Reform Act 2021 repeals sections 33 to 39 of the 2009 act, and sets out the law that now applies to the acquisition of prescriptive easements and profits.

In doing so, the 2021 act distinguishes between four different types of claims by reference to when the qualifying user-period was completed:

• Claims relying on a qualifying user-period completed prior to 1 December 2009 will be governed by the old law (see below),
• Claims relying on a qualifying user-period completed after 1 December 2009 will be governed solely by the Doctrine of Lost Modern Grant (‘future claims’),
• Pending claims (that is, claims to register prescriptive easements or profits already lodged with the Property Registration Authority (PRA) pursuant to section 49A of the Registration of Title Act 1964 or instituted by way of court proceedings prior to the coming into effect of the 2021 act) will be governed by the old law,
• Claims in respect of land that is owned by a State authority or which is, or was, foreshore land (‘State authority’ and ‘foreshore’ are both defined by section 1 of the 2021 act), relying on a qualifying user-period completed after 30 November 2021, will be governed solely by the Doctrine of Lost Modern Grant.

Old law claims

The old law applies to prescriptive easements and profits crystallised before 1 December 2009, regardless of whether or not any action has been taken to register the prescriptive right prior to the enactment of the 2021 act.

Under the old law, there are three separate forms of valid prescription:

• Common law prescription,
• Prescription under the Doctrine of Lost Modern Grant, and
• Statutory prescription under the Prescription Act 1832, extended to Ireland by the Prescription (Ireland) Act 1858.

Common law prescription is, in practical terms, obsolete. If the claimant can show user as-of-right from time immemorial (which means since 1189), then the courts will assume that this enjoyment has been on the basis of an ancient grant.

Over time, the difficulties of the rule were mitigated by the courts’ practice to accept a rebuttable presumption of immemorial user from 20 years’ user as-of-right. However, this presumption could be defeated if the court could be shown that user was not possible since 1189, or if there was unity of possession at some period since 1189.

The Doctrine of Lost Modern Grant allows the court to presume that a grant was made in modern times, but that this grant has been lost and so cannot be produced in court.

The doctrine is based on a legal fiction, and the presumption of a grant cannot be rebutted by proof that no grant was ever made.

The following are the principal features of the Doctrine of Lost Modern Grant:

• In seeking to prove the existence of an easement, the four essential characteristics of an easement identified in Re Ellenborough Park must be present: (i) there must be a dominant and servient tenement; (ii) an easement must ‘accommodate’ the dominant tenement; (iii) dominant and servient owners must be different persons; and (iv) the right claimed must be capable of forming the subject matter of a grant. These four characteristics must be present for all of the three separate forms of valid prescription available under the old law, including the Doctrine of Lost Modern Grant. As profits can exist ‘in gross’, neither (i) nor (ii) are essential in proving the acquisition of a profit by prescription.
• The easement or profit must be enjoyed for a minimum period of 20 years before any prescriptive right arises.
• The 20-year user period must be exercised ‘as of right’, meaning that the use or enjoyment of the right must be “without force, without secrecy and without the oral or written consent of the servient owner”. Essentially, an easement must be exercised as though it was an entitlement under a grant.
• Once the claimant can establish 20 years user as-of-right, his position is secure – it does not matter that there has later been a period of non-user (unless it is determined that the prescriptive right has been extinguished by abandonment or otherwise – see below).
• There is no ‘next before suit’ requirement in the Doctrine of Lost Modern Grant. It is not necessary that the claimant’s enjoyment should continue up to the time of the dispute: any 20-year period of user as of right will suffice.
• The user must be continuous (not to be equated with incessant), although the frequency of use necessary depends, generally, on the nature of the easement at issue.
• There is authority to the effect that the presumption will not be made if, during the user-period, there was no person capable of making a grant. The courts may refuse to presume a lost grant where the servient owner was under a disability (such as mental incapacity) or was a corporation prohibited by its memorandum of association from dealing in land.

Statutory prescription

The Prescription Act 1832, extended to Ireland by the Prescription (Ireland) Act 1858, created a new type of prescription, but did not abolish the two existing forms of prescription, namely common law prescription and the Doctrine of Lost Modern Grant.

The Prescription Acts provide that, once the qualifying user-periods (specified therein) have been established, a claim cannot be defeated simply by proof that the enjoyment did not go back to 1189.

The Prescription Acts distinguish between short and long periods of qualified user-period. Short periods of user (20 years for easements; 30 years for profits) raise a presumption that a prescriptive right has been acquired that can be defeated by evidence to the contrary.

Long periods of user (40 years for easement; 60 years for profits) raise a presumption that a prescriptive right has been acquired that is “absolute and indefeasible” unless it has been enjoyed by written consent.

The Prescription Acts require that the prescriptive right must have been enjoyed without interruption up until the initiation of court proceedings.

The definition of ‘interruption’ in section 4 of the 1832 act is understood to require hostile obstruction of the enjoyment of the right causing discontinuance for at least one year.

The dominant owner shall have notice of the interruption, and shall thereafter have submitted to, or acquiesced to, such interruption for one year.

In the words of section 4 of the 1832 act, the period of user as-of-right must come “next before some suit or action in which the claim or matter to which the period relates is brought into question”.

Thus, rights under the Prescription Acts do not crystallise until adjudicated upon by the court, and may therefore be lost if there is a subsequent interruption. As a result, claimants continue to rely on the Doctrine of Lost Modern Grant, to which no such limitation applies.

The Prescription Acts make special provision for rights of light. Where the access to light is enjoyed without interruption for 20 years next before suit or action, the right becomes absolute and indefeasible.

Abandonment and extinguishment

It is clear from the common law that mere evidence of non-user is not sufficient to bring about the extinguishment of a crystallised prescriptive right acquired pursuant to any of the three forms of valid prescription available under the old law.

A presumption of abandonment will not lightly be inferred, and must be supported by evidence of conduct or intention adverse to the exercise of the right (O’Hanlon J, Carroll v Sheridan and Sheehan).

The extinguishment of prescriptive rights, not by their nature used incessantly (such as rights of way) will not be inferred by abandonment of the use of the prescriptive right, unless the person entitled has also demonstrated a fixed intention never at any time thereafter to assert the right again or to transmit it to anyone else (Tehidy Minerals Limited v Norman).

Section 4 of the 2021 act specifically confirms that the common-law rules regarding extinguishment apply to all prescriptive rights, and that neither the enactment of section 39 of the 2009 act, nor its subsequent repeal under section 6 of the 2021 act, affect their continued applicability.

Future claims

All future claims will be considered solely by reference to the rules applicable to the Doctrine of Lost Modern Grant. Common law prescription and the Prescription Acts will not apply to future claims.

The adoption of the Doctrine of Lost Modern Grant reinstates the 20-year prescriptive period for all property other than land that is owned by a State authority or which is, or was, foreshore land.

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.

The 2021 act is premised on the proposition that a right vests under the Doctrine of Lost Modern Grant when the qualifying prescriptive period is complete.

The right may later be recognised in proceedings or pursuant to section 49A, leading to registration, but it has already been created. This proposition confirms the basis for reliance on statutory declarations as to prescriptive user in conveyancing.

Transitional claims will be governed by the three separate forms of valid prescription available under the old law.

State or foreshore claims

All State or foreshore claims will be considered solely by reference to the rules applicable to the Doctrine of Lost Modern Grant.

Common law prescription and the Prescription Acts will not apply to State or foreshore claims.

However, extended qualifying periods of user are required to acquire prescriptive easements or profits over land that is owned by a State authority or which is, or was, foreshore land. These extended periods of user are detailed in section 3(1)(a) and (b) of the 2021 act.

For claims to prescriptive easements or profits in respect of land that is owned by a State authority or which is, or was, foreshore land, relying on a qualifying period completed prior to 1 December 2009, the old law applies, and the extended user periods set out in section 3 of the 2021 act are not applicable.

This means that the extended periods introduced in respect of State authority land in the 2021 act can be avoided by the Doctrine of Lost Modern Grant if a qualifying user period of 20 years prior to 1 December 2009 is established.

Denise Healy is a solicitor and a member of the Conveyancing Committee’s Easements Task Force.