By Caitriona Leahy, Associate Solicitor, Property Department
The Land and Conveyancing Law Reform Act, 2009 (“the Act”) has introduced significant changes to the law on easements and profits á prendre from 1st December 2009. This article discusses both easements and profits á prendre which are extremely common and usually exist between neighbouring landowners.
What is an Easement?
An easement is a right for a landowner to do something on a neighbour’s land or to prevent a neighbour from doing something on the neighbour’s own land. Common examples of easements are rights of way or rights of light.
What is a Profit á Prendre?
A profit á prendre is a right to go on to another person’s land to take natural material from it, such as turf or timber.
How can Easements and Profits á Prendre be Acquired?
Prior to the introduction of the Act, such rights could be acquired on the basis of use over a period of twenty years and there was no requirement to have the rights registered. However the Act now provides that legal title to such a right can only be acquired by obtaining a court order and registering the order in the Land Registry or Registry of Deeds, as appropriate. The court will make an order declaring the existence of such a right if it is satisfied that there is twelve years user (previously twenty years) as of right. “As of right” means without force, secrecy, interruption or consent. Thirty years user is required if such a right is being asserted against a State authority and foreshore requires sixty years user.
When can Easements and Profits á Prendre be lost?
Under the Act an easement or profit á prendre will be extinguished if it is unregistered and has not been exercised for a continuous period of twelve years.
Protection of Rights Which Were in Existence Prior to the Act coming into force on 1st December 2009
The Act provides that a landowner holding an easement or profit á prendre under the prior law must secure the right by applying for a court order confirming entitlement to the easement or profit á prendre on or before 30th November 2012. Otherwise the landowner will not acquire legal title to an easement or profit á prendre until he has established twelve years continuous user from the 1st December 2009. For full protection the landowner must then go on to obtain and register the right in the appropriate Registry.
The Act has no impact on rights granted by agreement (usually by deed) between the parties.
Consequently, the holders of easements or profits á prendre, which are unregistered, should act fast and secure these rights. If a court order is not applied for by 30th November 2012 the rights will be lost and the user will have to re-acquire the rights by establishing twelve years user from 1st December 2009. Accordingly in circumstances where an order has not been applied for the user will not be able to regain these rights until 2021 at the earliest. In the meantime there is a risk that the rights could be lost.
Conversely, landowners subject to such rights should be aware that these rights, which can have an impact on the value of their lands, can now be acquired in the shorter period of time of twelve years as compared to twenty years under the previous law. Landowners may need to take appropriate measures to prevent users acquiring easements and profits á prendre.
Anyone affected by the issues raised in this article should seek legal advice without delay. For further advice and information contact Caitriona Leahy, Associate Solicitor.
To fully protect easements and profits á prendre under the new Act a court order must be obtained and registered.
A current holder of a right under the law in force prior to 1st December 2009 needs to apply to court for an order by 30th November 2012 to ensure they do not have to show twelve years use of the right from 1st December 2009 under the new Act.
Rights can now be acquired in twelve years under the new Act compared to twenty years under previous law.