Profit à prendre while you can: Transitional period to end under Land and Conveyancing Law Reform Act 2009 to bring about new registration regime for easements and profits à prendre

The Land and Conveyancing Law Reform Act 2009, as amended (the “2009 Act”) brought substantial reform to the area of property and land law. One particular area that is subject to reform is the area of easements and profits à prendre. This area of law will see substantial changes come the 30 November 2021.

What is an easement?

An easement is a right that a landowner, or occupier of land has over neighbouring lands. Common examples of these are, the right to run services or pipes under land for the purpose of servicing the lands and the right to enter onto the adjoining land to install or repair the pipes.

What is a right of way?

A right of way is a legally enforceable right to cross another’s land along an established route – most commonly occurring to facilitate access to the property of the person utilising right. Rights of way can arise in situations where there is no public road abutting a property or land.

What is a profit à prendre?

Although not commonly seen in commercial transactions, a profit à prendre is the right to take or benefit from the land owned by another person. This can be in the form of produce grown on the land or from the extraction of the land itself, i.e. soil, turf and or other minerals.

Pre 2009 Act

Prior to the 2009 Act any of the three rights above could be established by a vendor through the provision of a statutory declaration of long usage. Although, it would be best practice to have such rights registered either in Property Registration Authority, failure to do so would not make a parcel of land unmarketable. Current market practice is that a statutory declaration would be sufficient and accepted prima facia evidence that such rights were in existence.

An easement or right of way could be established with 20 years continuous use, with such right becoming absolute after 40 years.

A profit à prendre could be established with 30 years continuous use, and again with such right becoming absolute after 60 years.

What is changing?

The 2009 Act has abolished the rights of any person over another’s land that have not been registered in the Property Registration Authority. The 2009 Act has also altered and aligned the relevant usage periods for all three rights to 12 years continuous usage, with the exception of property or land owned by a State Authority where the time period is a minimum of 30 years. With respect to land that comprises of foreshore, the relevant time period has been extended to 60 years.

Given the impact that this will have, a transition period of 12 years was provided to allow those who may have accumulated the relevant 12 years usage (as provided for in the 2009 Act) prior to its commencement. This is due to expire on the 30 November 2021.

Failure to register

Any right that has not been successfully registered with the Property Registration Authority will expire on the 30 November 2021. The consequences of such are:

  • The party attempting to establish the right will no longer be in a position to rely on the old law of prescription and be subject to the additional requirements of the 2009 Act.
  • Any time accumulated using the right which occurred prior to the 2009 Act (1 December 2009) may not be relied upon.
  • The existence of any such right will no longer be accepted within the market without its registration.

Who should be concerned?

Any property or landowner, who is exercising any of the above rights should carry out an investigation to establish if they have satisfied the timeframes set down prior to the 2009 Act and seek to have them registered.

The largest impact may be seen in relation to the buying and selling of development land. Vendors of land should be aware that where easements are required for access or the provision of services to the land, failure of to have these registered may ultimately have an effect on its market value.

Developers looking to acquire development land which does not already have the benefit of planning permission, should ensure that all applicable rights for access and services are available and registered. The ability for the provision of services to any future developments is a key component of a potential planning application.

The registration process

There are two registration processes that can be utilised when seeking to register the right as a burden. The applications must be submitted to the Property Registration Authority by the person(s) that are seeking to rely on the right (i.e. the owner of the Dominant Land).

In most instances, the registration of the right as a burden on the land will be done by consent. Where the land in question is already registered the process is provided for under Section 49(a) of the Registration of Title Act 1964. The applicant will be required to submit an appropriate map together with the ancillary documents.

Where the Dominant Land is unregistered, a First Registration Application will also be required to be submitted.

In circumstances, where there is an objection lodged to the registration or existence to the right being asserted, the Property Registration Authority may decline its registration – such decision can be appealed to the relevant court of jurisdiction (depending on the location and value of the land).

If the right is known to be contentious or refuted by the owner of the lands, an application may be made directly to the relevant court pursuant to section 35(1) of the 2009 Act seeking its establishment.

Conclusion

The new rules in relation to claiming long use will have significant impact if the property in question is either owned by the State or located on the foreshore. In either case, a landowner will have to wait a significant period of time before establishing their prescriptive rights even if they had accrued a sufficient user period prior to 30 November 2021. This is mainly due to the fact that the 2009 Act discounts any time accrued prior to 1 December 2009. Therefore, claims made against State-owned land or against foreshore can only arise on or after 1 December 2039 (for State-owned land) and 1 December 2069 (for foreshore land) under the new regime.

Time is now of the essence in relation to such claims and particularly in relation to State owned and foreshore land, some claimants may need to take steps to assert such rights more swiftly than others.

 

For further information or advice in relation to the above article, please contact John O Donoghue or Brendan O’Connor.

Article written with the assistance of Harry O’Malley.

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