Do you have an unregistered Easement (eg Right of Way, or Profit á Prendre)? You now have five years remaining to either ‘Register it or Lose it’

Author: Thomas O'Malley, Lisa McKenna and Alison Hardiman

October 18, 2016

Summary:

With the aim of bringing greater certainty to claims of easements (eg. rights of way / profits á prendre), recent legislation requires landowners to either register such interests or risk losing them.

Specifically, section 39 of the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) was amended by the Civil Law (Miscellaneous Provisions) Act 2011 the (“2011 Act”) to provide that on the expiration of a 12 year continuous period of non-user of an easement acquired other than in writing, that right will be extinguished except where it is protected by registration in the registry of deeds or land registry as appropriate.

If you have such a right, in order to protect it into the future, the time to act is now.

Definitions:

An easement is the right of a land owner to do something on a neighbour’s land or to stop the neighbour from doing something on the neighbour’s own land. Examples include the running of pipes and services over, through or under land and the right to access the land for repair/maintenance /renewal purposes.

A right of way is the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another. This usually relates to a right to walk or drive along a road, route or pathway.

A profit à prendre is a right to take from the land owned by another person part of the natural produce grown on that land or part of the soil, earth or rock.

Background:

Easements affect the commercial value of lands as it is not possible to secure planning permission or build on the areas where the rights are claimed or sell / develop lands where rights of access are not available. In planning terms, even if a grant of planning permission is obtained in respect of lands over which an easement exists, that development cannot proceed without the written consent of the owner of an affected easement. It is therefore better in the context of a modern system of title registration to insist that all such rights be registered or extinguished in the absense of registration within a defined period.

Pre 2009, the practice had evolved that a statutory declaration as to long use of an easement was accepted by buyers as strong evidence of the validity/ enforceability of the rights claimed. The statutory declaration would often detail how the use commenced, over what period and whether it had been exercised without “let or hindrance”  i.e. without permission/ objection from the landowner in question.

The 2009 Act introduced a requirement to formally register such easements before 1 December 2012 rather than simply detailing them by way of such a statutory declaration. The relevant user period is a minimum of 12 years except in circumstances where the servient owner is a State Authority for a minimum of 30 years, or, where the servient land is foreshore, a minimum period of 60 years.

Formal registration means that such rights are immediately apparent as a burden (restriction or limitation) on the folio in question rather than, as was previously the case, not being available for review / inspection except by way of full due diligence. It was considered that forcing registration would provide clarity and would also result in a “weeding out” of rights that cannot be validated / are incapable of registration.

The provisions of the 2009 Act amounted to a significant change in the law and in practice, gave rise to increased numbers of legal proceedings and increased hardship for those seeking to demonstrate such rights. The provisions were therefore amended under the 2011 Act and the deadline for registration was extended to 29 November 2021.

What rights are affected?

Easements granted other than in writing or by implication of law are affected. In Ireland, such rights typically exist on the basis of consensual agreement or regular usage rather than written agreement. This practice traditionally grew out of landowner fears of loss of value / control in relation to their land by committing such rights to writing.

What does the Registration Process Entail?

The provisions of the 2009 Act were found to be burdensome upon title owners. Amendments introduced under the 2011 Act have streamlined aspects of the process and it now provides as follows:

  • Application for registration is made by the applicant dominant owner (the party asserting the right) directly to the Property Registration Authority (PRA) under a new section 49A of the Registration of Title Act 1964. An application is grounded on affidavit in Form 5A of the Land Registration Rules 2011, accompanied by a suitable map, fees (currently €25) and Form 17.
  • It is critical to note that this new procedure is intended to be used only in instances where there is no dispute and mutual agreement exists between the parties involved as to the entitlement of the Applicant to the easement.
  • If an objection is made, the PRA may refuse the application and issue an Order which can be appealed to court under section 19(2) of the Registration of Title Act 1964 or under section 35 of the 2009 Act.
  • It remains the case that a party may apply directly (ab initio) to the Court under Section 35(1) of the 2009 Act to establish an easement.
  • If the title to the land in question is unregistered, an application for first registration of the dominant tenement must be made at the same time as the application for an easement.

What happens if I don’t register the easement by 2021?

After this deadline, the process provided for under s.35 of the 2009 Act must be utilised in order to acquire any right acquired by prescription, typically on the basis of 12 year user. This can be done by court order or by application to the Land Registry in accordance with Rule 46 of the Land Registration Rules of 2012.

Conclusion

Given the risk of delay in cases where mutual consent regarding the easement in question is not forthcoming, it is prudent to act now in order to register and safeguard these valuable rights that benefit your land and affect the value and usage of your asset.

It is advised that proactive steps should be taken now in order to avoid risk of loss by extinguishment.

The Commercial Property Department at Fieldfisher has extensive experience in this area of practice. Please do not hesitate to contact us should you require any guidance in relation to the nature of your right and the registration process generally.

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