An Easement is a right which an owner/occupier of land has, by virtue of their ownership of land, over the land of a neighbour – for example, right of way, light, support and water.
Profits à prendre are rights to go on another person’s land and take natural material from it – for example, to cut timber or turf, to fish or hunt, to mine or quarry and graze animals.
The Land and Conveyancing Law Reform Act 2009 (as amended) attempted to simplify the law in respect of acquiring easements and profits à prendre by prescription (i.e., long term use or custom). However, it appeared to have the opposite effect.
Under the 2009 Act, applicants had 12 years from the 1st of December 2009 (being the date of commencement of the 2009 Act) to avail of the old user period timeframes requiring the applicant to establish a user period of 20 years for easements and 30 years for profits à prendre until the 30th of November 2021. From the 1st of December 2021, new user period timeframes would apply for the registration of easements and profits, but only use from 1st of December 2009 would be counted.
The 2009 Act also provided that after a 12-year continuous period of non-use, an easement or profit acquired by prescription or implied grant or reservation would be extinguished except where these rights were protected by registration in the Registry of Deeds or Land Registry, resulting in a requirement for continuous use or registration in order to protect an interest.
To address concerns raised with the changes that were due to come into effect on the 1st December 2021, the Land and Conveyancing Law Reform Bill 2021 was enacted and came into operation on the 30th November 2021. This Act repealed sections 33-39 of the 2009 Act, removing the 30th of November 2021 deadline to register an easement or profit à prendre. Accordingly, any rights established prior to the introduction of the 2009 Act, will not now be disregarded.
An applicant seeking to register an easement or profit à prendre after the 30th of November 2021 must be able to show a user period of at least 20 years. The relevant user period to be established in respect of State Land or Foreshore Land, is any period of 30 years and 60 years respectively.
No obligation to register is placed upon the holder of a prescriptive easement or profit à prendre by the 2021 Act. The Act goes on to provide that any claim for an easement or profit à prendre where the relevant user period was completed before the 2009 Act will be assessed under the law that applied prior to the 2009 Act. Where the relevant user period was not completed before the 2009 Act the claim will be decided under the doctrine of “lost modern grant”.
If you have any questions or require any assistance regarding easements or profits à prendre, please contact Hannah Clinton or Julie Mullan of our office via the contact details below. Email us here info@mcgrathmullan.ie