Appurtenant Rights

Original version<a href='/vid/appurtenant-rights-907695896'>Appurtenant Rights</a>
1. Appurtenant Rights in General

Generally, where there is enjoyed with land (the dominant tenement) a right over other land (the servient tenement) in the nature of an easement or profits a prendre and the extent of the user of this right is governed by the needs of the dominant tenement, such right is appurtenant to the dominant tenement. It is then so attached to the dominant tenement that it follows it into whosoever hands the dominant tenement comes. (For a possible exception see ‘squatter’Practice Direction: Adverse Possession – Title by Adverse Possession to Registered Land). The tenements must, apparently, consist of corporeal property although it has been questioned whether an incorporeal right can be an appurtenance to an incorporeal right e.g. a right of way appurtenant to a right of fishing, Hanbury -v- Jenkins 1901 2 Ch.407. Such a right cannot exist in gross and if it is severed from the dominant tenement by the unilateral act of the owner of the dominant tenement it will be extinguished and merge in the servient tenement. In order to sever an appurtenant right from the dominant tenement and make it appurtenant to another dominant tenement, the owner of the servient tenement and the owner of the first dominant tenement must join in a deed of release and regrant.

The Land Commission may, in certain circumstances, declare rights of turbary and grazing formerly enjoyed by the tenant of a holding to be appurtenant to his holding. (See Land Act 1931, section 40). Formerly registration under Q.3 Agreements purporting to vest incorporeal hereditaments such as rights of turbary, fishing, etc was refused because the Irish Land Commission had no power to vest such rights. Now the Irish Land Commission has such power under section 19 of the Land Act 1965. Accordingly, registration is now to be effected in such cases. In any case of difficulty the official concerned should seek the direction of the Divisional Manager.

Note: Land and Conveyancing Law Reform Act 2009:
Section 34 abolishes the acquisition of an easement or profit a prendre by prescription at common law and prescription by way of lost modern grant. From 1st December 2009, acquisition by prescription shall be in accordance with section 35.

Section 35 provides an easement or profit a prendre shall be acquired at law by prescription only on registration of a court order made under section 35.

Subsection 35(2) provides that in an action to establish or dispute the acquisition by prescription of an easement or profit the court shall make an order declaring the existence of the easement or profit if it is satisfied that there was a relevant user period immediately before the commencement of the action. Note the period of user must be immediately before the court action.

Under section 35(3), the Court may make an Order under subsection 2 where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all of the circumstances of the case.

An order made under subsection 2 shall be registered in the Registry of Deeds or Land Registry.

“Relevant user period” means a period of user as of right without interruption for 12 years [as opposed to 20 and 40 year periods for easements and 30 and 60 year periods for profits under the 1832 Act], in the case of a State Authority the relevant user period is 30 years and in the case of foreshore, 60 years.


Appurtenant rights may be extinguished by operation of law, by statute, by express or implied release. It is to be noted, however, that it is extremely difficult to establish the extinguishment of such a right by abandonment. In fact, for registration purposes, a Court Order would probably be necessary in such a case.

Section 39 of the 2009 Act provides that on the expiry of a 12 year continuous period of non-user of an easement or profit acquired by (a) prescription or (b) implied grant or reservation is extinguished except where a notice in the prescribed form is registered...

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