Bookmark & Share


  • Email This Page Email This Page
  • Print This Page Print this page

RSS FEED

SUBSCRIBE TO OUR NEWSLETTER

Europe > Ireland > Real Estate > Easements > Overview

Overview: Real Estate , Easements

                                                       Changes to the Law on Easements

The Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) has brought about considerable change in land law including in the area of Easements.

What is an Easement

Easements comprise a category of rights in relation to land where an owner of land has an entitlement to enjoy rights over the land of another. The land that enjoys the right is usually referred to as the “dominant land” or “dominant tenement” and the land over which the easement is enjoyed is known as the “servient land” or “servient tenement”. An easement attaches to the dominant land and as a result the owner of the dominant land can transfer this right with the land or it may be inherited from him with his land.

An easement may be a right to use the land of another or the right to take from the land of another. Practical easements that we never really consider are rights of way along roadways or via laneways, rights to light and rights of support for buildings. They include a right for a water pipe, cable or sewer that runs across your neighbours land or even rights to park your car. Easements that involve a right to take from the land of another are known as “Profits-a-Prendre” and examples of these would be the right to fish, to hunt, to graze animals, to cut timber or turf and to extract minerals or to quarry on another’s property.

Acquiring an Easement

The simplest and most common method of acquiring an easement is where one landowner grants by way of a deed an easement to another landowner who could then register this with the Property Registration Authority or Registry of Deeds. Such easements would subsequently be specified in the owner's title. Common examples would be in residential estates where each house or apartment is granted common easements over its neighbour’s lands to access services or where one landowner simply grants a right of way over his land to the owner of land who needs access to lands that might otherwise be inaccessible.

This generally involves drawing up a formal document where the manner in which these rights can be exercised may be governed. This could include restrictions on the manner or time of the use, the purpose of the use which might be limited to say access on foot or for animals. Easements granted by way of a deed in this manner and which were subsequently registered in the Land Registry were unaffected by the changes in the 2009 Act.

The second method by which an easement can be acquired is by what is known as “prescription”. This arises in cases where there is no deed or other written document granting the easement or rights but the rights may have been in existence for a long number of years where the use has been undertaken openly, without force and without consent of the owner of the servient land. In some cases you may not even know who owns the road or land that is the servient land over which the easement is enjoyed. In these circumstances, the person using the rights will generally be said to have an easement by prescription.

The law in Ireland has always recognised the acquisition of easements by prescription where such rights have been in use on a continuous basis, openly and as of right for in excess of 20 years and longer in the case where the servient land is in the ownership of the State. To acquire a Profits-a-Prendre you needed to show the right existed for 30 years.

These prescriptive easements were rarely registered in the Property Registration Authority. What happened in conveyancing practice was that on a sale of property which had the benefit of an easement, the Vendor would provide a formal declaration of long usage setting out the history of use of the easement or right. This history could include his use and that of the previous owners of the property. The Purchaser would then rely on that declaration as proof of the existence of an easement by prescription and his right to use the easement.

Easements of necessity or implied easements arose on occasions. This was also known as the Rule in Wheeldon v Burrows. This rule provided that on a sale of part of a property there will pass to the purchaser as easements all rights by way of quasi easements that are necessary for the reasonable enjoyment of the property sold. These rights have to have been enjoyed by the owner of the property for the benefit of the part sold and will be implied to have been granted with the part sold unless this would be clearly inconsistent with the intention of the intention of the parties.

This Rule has now been abolished and replaced by section 40 of the 2009 Act which is a statutory formula that provides that an easement will be implied where such easement:

1. is necessary to the reasonable enjoyment of the part disposed of; and
2. was reasonable for the parties, or would have been if they had adverted to the matter, to
assume that the easement was being included in the sale.

This latter provision will undoubtedly lead to litigation where the courts will be required to try to determine what the parties might have considered at the time of the transaction had they considered the issue. This interpretation will take place against a background where the parties will have been unable to subsequently agree between themselves what they might have agreed to be reasonable at the time of the transaction had they considered the question. The courts may have a difficult time in trying to interpret what the parties might have considered to be reasonable at the time of their negotiation.

The requirement that the implied easement must have actually been used as a form of easement by the landowner before the sale has also been removed.

The 2009 Act specifically provides that this provision does not affect easements arising as easements of necessity or by operation of the doctrine of non-derogation from grant. The latter is the principle that a seller of land is not permitted to take action that would lessen the value to the buyer of the land sold, he cannot grant with one hand and take away with the other by taking action inconsistent with his grant.


The New Law after the 2009 Act

Section 34 of the 2009 Act abolishes the acquisition of an easement or profit a prendre by prescription. After 1 December 2009 the acquisition of such easements or profits a prendre by prescription shall be strictly in accordance with the provisions of section 35 of the 2009 Act.


Section 35 of the 2009 Act provides that to acquire an easement or profit a prendre by prescription you must have the “relevant user period immediately before the commencement” of court proceedings to establish the easement and the easement is only acquired by the obtaining of a court order where you have satisfied the court that there was the relevant user period before the commencement of the court action. On obtaining a court order declaring the existence of the easement it must be registered with the Property Registration Authority.

The definition of relevant user period can be broken down into a few key parts –

The applicant must show that he is the “dominant owner” which is that he is the owner of the dominant land and is the “user as of right” which is that he or his predecessors have for the appropriate period used the dominant land “without force, secrecy and without the oral or written permission of the servient owner”

This user must be “without interruption” for a continuous period of at least one year. This means that there has been no interference with or cessation of use or enjoyment of an easement or profit a prendre for that period.

The time periods involved have also changed. Now the applicant in his court application must show that he has enjoyed the easement for a minimum period of 12 years provided that the servient owner is not a State authority when the minimum period is 30 years or where the land relates to part of the foreshore which has a minimum period of 60 years. The court may make an order where the relevant user period has not been achieved immediately before the commencement of court proceedings if it is just and equitable to do so in all the circumstances of the case.

To secure any formal grant of right of way obtained by deed or on foot of a Court Order it is necessary to register this in the Property Registration Authority. The 2009 Act brought in a time period within which you had to have your easement registered with the Property Registration Authority. This period was initially three years which would have expired on 1 February 2012 but by Section 38 of the Civil Law (Miscellaneous Provisions) Act 2011 this was extended to 1 December 2021. This applies to easements that are acquired by prescription but also to easements that have been granted by deed where these are not already registered.

It is still important to remember that if you have been using an easement you could find that you lose that right if it is not registered with the Property Registration Authority whether the easement was acquired by long use or by deed. If the easement is not registered then the right may be extinguished and the time period for re-acquiring that right, twelve years, starts all over again from 1 December 2021 with previous use being considered irrelevant. The result could be the complete loss of the right of way.

All written deeds previously granting a right of way may not necessarily have been registered so it is advisable that one should check with their solicitor to confirm that such a deed has in fact been registered. It is also important to note that even if you have acquired a right of way by prescription or by an implied grant, but it has not been registered in the Land Registry or Registry of Deeds by that date, it will be extinguished after 12 years of continuous non use.

Some improvement has now also been made following the passing The Civil Law (Miscellaneous Provisions) Act 2011 which provided new procedures to enable a person who’s property has previously enjoyed these prescriptive rights to register them in the Property Registration Authority without the need to seek a formal written right of way and without the need to apply to Court for a formal Order. The process involves the preparation and lodging of a very detailed application with the Property Registration Authority pursuant to Section 49 of the Registration of Title Act 1964. Assuming that the application is correctly and comprehensively prepared then the Property Registration Authority will send notice to the owners of the lands over which the right of way is claimed and if they do not object then it will register the right sought.


It is critical to note that this new procedure is intended to be used only in cases where there is no dispute between the parties involved as to the entitlement of the applicant to the easement. In the event of a dispute then the Property Registration Authority will refuse registration and the applicant will be left with no option but to take the expensive Court route to establish the easement. This simpler procedure will however avoid unnecessary court costs in most instances.


Leasehold Land

What happens if a tenant acquires an easement as the dominant owner? The position is set out in section 36 of the 2009 Act. Here the easement attaches to the land and at the end of the tenancy passes to the landlord.

Where an easement is acquired against the tenants interest that is where the tenant has been in occupation of the servient land then this easement ends at the end of the tenancy unless the servient owner acquires a superior interest in the land when it attaches to that interest or the servient owner obtains an extension or renewal of the tenancy it continues to attach for the period of such extension or renewal.

If subsequently the dominant owner clocks up a new user period against a landlord who has taken possession at the end of a tenancy that dominant owner can apply under section 35 in the normal way for registration of the easement or profit a prendre.

Extinguishment

On the expiry of a 12 year continuous period of non-user where the dominant owner ceases to use or enjoy the easement or profit a prendre acquired by prescription or implied grant or reservation the easement or profit a prendre is extinguished except where it is protected by registration in the Registry of Deeds or the Land Registry. This highlights the importance of registration introduced by the 2009 Act. Without formal registration the easement or profit a prendre formally acquired under the new procedure for prescriptive acquisition is capable of becoming extinguished on the basis of non-user. It is worth pointing out that for easements or profits a prendre acquired prior to 1 December 2009 this rule also applies provided there is at least 3 years of the period of non user which occurs after the 1 December 2009.

The 2009 Act specifically provides that the extinguishment provisions have no effect on the ordinary jurisdiction of the courts to declare that an easement or profit a prendre however acquired has been abandoned or extinguished.


Summary

There are now three main methods by which you can acquire your easement.

The first is by way of approaching the owner of servient land and agreeing that he will give you a formal grant of an easement. When this deed has been drawn up and executed by all parties you should then register it.

The second is by way of s 37 of the 2011 Act which allows you to file a detailed affidavit in the Property Registration Authority and they will register the easement in the absence of any dispute.

Thirdly you can make a court application and having obtained a court order approving your easement you should then register this in the Property Registration Authority.

Last Update: 2013-Mar-18 Daniel Murphy - AMOSS Solicitors
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Daniel Murphy
Law Firm: AMOSS Solicitors
Telephone: +353 1 212 0400
Email: law@amoss.ie
Website: www.amoss.ie
Social Media: