Prescriptive easements are registered in the Land Registry 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. Such applications are made in Form 68 of the Land Registry Rules. The purpose of this change was to provide people with an easier and cheaper way to register an easement without having to apply to court. Section 49A applications are appropriate only in non-contentious cases. See Easements and Profits à Prendre Acquired by Prescription under Section 49A at www. prai.ie.

The procedure under section 49A involves the applicant swearing Form 68. Paragraph 2 of Form 68 reads as follows:

“(Describe how and when the user period began and set out such facts as are relied upon in support of the applicant’s claim to have established his right. The applicant must establish that there was at all material times a capable grantor and grantee, that the right was capable of forming the subject matter of a grant, that the right claimed was acquired by prescription and was not a public righof way, customary right, franchise or licence, nor acquired by express grant or reservation nor is it an easement of necessity, that there has been the requisite period of user, that the exercise of the right has been without force, without secrecy and without permission and that the grant of the right would not have been illegal).”

These requirements are stated in a manner that is not wholly consistent with the law on prescription. For example, an equitable right that was originally exercised under a licence can evolve into a prescriptive right.

A right to claim an easement established by prescription and alternative claims (such as a right of necessity) are not mutually exclusive. One may be able to rely on either or both. However, Form 68 does not cater for such a possibility. An applicant is effectively being required to disclaim possible rights, such as a right of way by necessity, in order to make the application to the PRAI under section 49A. If an applicant to the PRAI claims or confirms that the easement sought is an easement of necessity, the application based on prescription will be rejected by the PRAI.

Applicants who have sworn Form 68 may have precluded themselves from subsequently making any application to court for a declaratory order, which is inconsistent with the averments in the Form 68 lodged if the PRAI application fails. The PRAI has indicated that it could not accept any qualification in the section 49A application seeking to reserve the rights of the applicant in case they needed to go to court to validate any right.

Where there is a possibility that an applicant may wish to rely on an easement of necessity, or any other alternative basis for the use that is required to be disavowed by Form 68, then the prudent course may be to make a court application rather than a section 49A application. The committee recognises that a court application is much more expensive, and there is also a risk of an applicant being ordered to pay the legal costs of the owner of the servient tenement. It may be possible to reduce the exposure to costs where the owner of the servient tenement (and any charge holder where appropriate) consent to the court application.

Solicitors need to carefully discuss what is practicable when their client is choosing which route to take to confirm and/or register a prescriptive right.

Where a claimed right is contested, a court order is required to confirm the right. In cases where such an order is made under the 2009 act, it will be necessary to register that order in the Land Registry by reason of section 35(4) of the 2009 act. In other cases, it would not be necessary to register that court order in the Land Registry, but where it is prudent to do so, section 69(1)(h) http://www.irishstatutebook.ie/eli/1964/act/16/section/69/enacted/en/html of the Registration of Title Act 1964 allows for such registration.

The committee is making representations, seeking to have the PRAI procedure changed to remove this unnecessary clog on section 49A applications. These representations seek the removal of the words “and was not a public right of way, customary right, franchise or licence, nor acquired by express grant or reservation nor is it an easement of necessity” from the notes in paragraph 2 of Form 68.