Clair Cassidy and Paul McCutcheon start the clock running with the
Land and Conveyancing Law Reform Act 2009.
The Land and Conveyancing Law Reform Act 2009 has provided a long-awaited and much-needed overhaul of many of the more archaic principles governing land law and conveyancing practice in Ireland. One area on which the 2009 Act has had a significant effect is the law relating to easements and profits à prendre. Although these seem like obscure legal terms, most land in Ireland is subject to interests of this nature.
An easement is a right for one landowner to do something - or to prevent a neighbour from doing something - on the neighbour's own land and includes such common matters as rights of way, rights of light and rights of support. A profit à prendre is the right to go on to someone else's land and take natural materials from it and would, for example, include the right to mine, quarry, fish, hunt, graze animals or cut turf.
Easements and profits à prendre can be acquired by agreement between two respective landowners or can be created by statute. They could also be acquired at common law by long use over a period of time (known as prescription) or under a principle known as 'Lost Modern Grant'. The rules for the acquisition of these rights were previously governed by the complicated provisions of the Prescription Act, 1832. The 2009 Act simplifies greatly the procedure for the acquisition of these rights. Both prescriptions at common law and under the doctrine of Lost Modern Grant have been abolished by the 2009 Act. Since 1 December 2009, an easement or profit à prendre can only be obtained by long use if the person claiming the easement or profit obtains a court order and registers this in the Registry of Deeds or Land Registry as appropriate. However, landowners who would have acquired easements or profits à prendre through long use will need to act quickly to protect any interest they have acquired if they do not wish to lose it.
The coming into force of the 2009 Act could also be of significant benefit to landowners who had not acquired their easement or profit à prendre under the Prescription Act. Previously, the period to claim an easement or profit à prendre would be at least 20 years and could extend up to 60 years, depending on the right being claimed. Under the 2009 Act, this has now been standardised to a fixed period of 12 years. Therefore, any person who has enjoyed the benefit of an easement or profit à prendre with a 'relevant user period' will be entitled to apply to the court to obtain an order confirming this right. 'Relevant user period' means a period of 'user as of right' without 'interruption' by the person claiming to be the owner of the land over which the easement or profit is used for a minimum period of 12 years, starting on 1 December 2009. 'User as of right' means use or enjoyment without force or secrecy and without the oral or written consent of the landowner and 'interruption' means interference with or cessation of the use or enjoyment of an easement or profit à prendre for a continuous period of at least one year. The only exceptions to this 12-year period are if the owner of the land in question is the State, for which a user period of 30 years is the minimum required, or where the land in question is foreshore, where a minimum period of 60 years is required.
Significantly, however, the 2009 Act will not apply to a claim based on a user period under the Prescription Act unless an action to obtain and register a court order confirming the right is not brought within three years of 1 December 2009. If it is not, then the 'relevant user period' must be acquired from 1 December 2009 as the rights acquired will have been lost and will not be reacquired until 2021 at the very earliest.
The 2009 Act presents an opportunity to land owners to acquire easements and profits à prendre in a much shorter period of time than was previously the case. However, those who have already acquired the rights through long use will need to act promptly to ensure that their rights are registered within the three-year window from 1 December 2009, otherwise they will lose their acquired benefit. Similarly, landowners will need to be aware that easements and profits à prendre that could significantly impact on the value of their property can be acquired in a much shorter period of time than was previously the case and may have to take appropriate action to ensure that such rights are not acquired.
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