knowledge | 10 October 2019 |
Easement Come, Easement Go?
An upcoming registration deadline has the potential to negatively impact certain informal rights over lands. While the risk of loss is limited, for those affected there may be a lot at stake. The time to consider the impact and to act, if necessary, is now.
What is the registration deadline?
The Land and Conveyancing Law Reform Act 2009 (the "2009 Act") sets new time periods to be met for the establishment of easements and other rights to profit from land through long use. However, there is a transition period (until 30 November 2021) during which informal easements and rights which satisfy the old time periods can be established and registered.
What types of right are affected?
The categories of rights affected are easements and profits à prendre ("profits"), which have been acquired informally through long and established use (referred to legally as being acquired by “prescription”) and not by deed, agreement, statute or other legal implication. An easement is a right over land, which benefits other land. Rights of way, drainage, air, light and rights to lay and maintain pipes or cables over adjoining lands are all types of easement. A profit is a right to take something from another person’s land. Rights to fish, shoot, cut turf, extract water are all types of profit.
This note focusses in particular on easements, as easements acquired by prescription are relied on more regularly than profits.
What are the current relevant use periods and options for registration of prescriptive easements?
Currently, until 30 November 2021, applications to register prescriptive easements can be made directly to the Land Registry (and, in disputed cases, to the Circuit Court) for assessment on the basis of:
- 20 years use for general applications; and
- 40 years use for foreshore.
What are the new relevant use periods and options for registration?
With effect on and from 1 December 2021, applications to register prescriptive easements (and profits) may continue to be made to the Land Registry (and, in disputed cases, to the Circuit Court) but will be assessed on the basis of the following new use periods set out in the 2009 Act, but importantly also excluding any period of use prior to 1 December 2009:
- 12 years use for general applications;
- 60 years use for foreshore; and
- 40 years use for other lands owned by a State authority.
Who is most at risk of loss and why is it important to consider the issues now?
If a property owner is relying on prescriptive easements acquired over foreshore (following 40 years use) or other lands owned by a State authority (following 20 years use), the owner must register those rights to preserve them. If those currently established rights are not registered by the owner by 30 November 2021, the increased time periods that apply under the 2009 Act must be satisfied and any time accrued prior to 1 December 2009 is not counted. While not entirely clear, analysis and commentary would suggest that any application made but not completed on 30 November 2021 would have to be assessed on the basis of the new time periods. For this reason, and unless and until this is clarified, it is best to make the application sooner rather than later to give the application the best chance of completing before the transition period expires on 30 November 2021.
Is there any other risk of loss for non-registration?
The 2009 Act provides for automatic extinguishment generally of prescriptive easements and profits for 12 years of continuous non-use. While use preserves the rights, registration gives obvious protection against the risk of automatic extinguishment (or an allegation or concern that it has occurred) and should be particularly considered for all cases where periods of non-use are likely.
Must rights be registered in order to be passed on?
No. Whether before or after 1 December 2021 prescriptive easements and profits that are in the course of being acquired or that have been acquired can continue to be transferred with the ownership of land as is done currently, even though they have not been registered.
There is no one advice that will fit all circumstances and landowners who rely on prescriptive easements or profits will need to consider their position with their legal advisers.
That said, a prescriptive easement or profit that has been established under the current rules over foreshore or other land belonging to a State authority will need to be registered before 30 November 2021 in order to be preserved.
In other cases, other factors may be relevant in deciding whether or not to take action now. The costs of making an application to the Land Registry, or the potential of opening up a debate, or even a dispute, with a neighbour, may outweigh the benefits of seeking registration. We only recommend that the opportunity and options available for registration be considered now, while there is still time to see an application through before the transition period expires.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.