Easements and Profits à Prendre Acquired by Prescription under Section 49A

• Original version: <a href='/vid/easements-and-profits-prendre-907695924'>Easements and Profits à Prendre Acquired by Prescription under Section 49A</a>

1. Introduction

This Practice Direction sets out the procedure for the registration of easements and profits à prendre acquired by prescription under Section 49A of the Registration of Title Act, 1964 (“the 1964 Act”).

1. Scope of Practice Direction

An application for the registration of easements and profits acquired by prescription may be made directly to the Property Registration Authority (“the Authority”) without the necessity of first having to acquire a court order.

The provisions governing easements and profits à prendre acquired by prescription which were introduced by section 33 to 39 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”) are repealed by section 6(1) of the Land and Conveyancing Law Reform Act 2021 (“the 2021 Act”).

The repeal of the provision in section 35(1) of the 2009 Act (as amended) that an easement or profit à prendre may only be acquired at law by prescription on registration of a court order or in accordance with Section 49A of the 1964 Act means that the perception of a “deadline” for registration that had arisen with the passage of the 2009 Act is avoided.

No obligation to register is placed upon the holder of a prescriptive easement or profit à prendre by the 2021 Act.

Pursuant to section 6(2) of the 2021 Act, applications for registration received in the PRA prior to 30^th November 2021 will be processed in accordance with the law as it operated before the introduction of the 2009 Act. Applicants in these cases could avail of all three pre-2009 methods of acquisition: (1) at common law; (2) under the doctrine of lost modern grant; and (3) under the Prescription Act, 1832.

From the 30th November 2021, applications under the Section 49A procedure will continue to be available to applicants. However, any application from that date must be made in accordance with the provisions in the Land and Conveyancing Law Reform Act 2021 (see para 5.5 below).

The procedure under Section 49A is intended for cases where there is no dispute between the parties. Where a dispute exists, an application should be made directly to court as it is not the role of the Authority to adjudicate on these matters.

It is important to note that the scope of this Practice Direction applies to rights acquired by prescription only and does not extend to rights acquired by express grant/reservation, to the acquisition of rights implied by law, easements of necessity or to natural, public or customary rights.

Where a claim to an easement or profit à prendre based on prescription has been adjudicated upon by the court, an application can be made to register the court order as a burden under Section 69(1)(h) of the 2009 Act.

1. Relevant Legislation

• Prescription Act 1832 [as extended to Ireland under the Prescription (Ireland) Act, 1858]
• Registration of Title Act 1964 [No. 16 of 1964]
• Land and Conveyancing Law Reform Act 2009 [No. 27 of 2009]
• Civil Law (Miscellaneous Provisions) Act 2011 [No. 23 of 2011]
• Land and Conveyancing Law Reform Act 2021 [No. 140 of 2021]
• Land Registration Rules 2012 to 2021

1. Characteristics of an Easement or Profit

An easement is a right which an owner/occupier of land has, by virtue of his ownership of his land, over the land of a neighbour, e.g. right of way, light, support and water.

A profit à prendre is a right to go onto another person’s land and take natural material from it, e.g. to cut timber or turf, to mine or quarry, graze animals, fish or hunt.

While an easement must benefit a particular property, a profit à prendre may exist between neighbours or it may be held in gross i.e. independently of any land owned by the holder of the profit.

To constitute an easement a right must satisfy four requirements:

• There must be a dominant and servient tenement. A dominant tenement is the land benefited by the easement and the servient tenement is that over which the easement exists. An easement unlike a profit à prendre cannot exist in gross. The two properties must be linked, although not necessarily adjacent once there is sufficient proximity between them.
• The right over the servient tenement is for the accommodation of the dominant tenement, i.e. it must benefit the land itself, and not merely the owner in a personal capacity. If the benefit has no normal connection with the ordinary use of the land it cannot be said to accommodate it.
• The owners of the dominant and servient lands must, generally speaking, be different persons.
• Such rights must be capable of forming the subject matter of a grant (e.g. there can be no prescriptive claim to a right of privacy or a grant contrary to public policy).This is expressed in the general rule that all easements lie in grant i.e. it cannot be vague or uncertain and must not amount to ownership or possession of the land or merely be a right of recreation without utility of benefit. The right must be capable of precise definition. There must be a capable grantor and grantee.

Categories of Profit

Such rights fall into three categories:

• Those which are appurtenant to a dominant tenement e.g. turbary rights.
• Those which are appendant to land i.e. attached by operation of law (it is doubtful if any such profits exist in Ireland today, being based on ancient feudal rights of pasturage).
• Those held “in gross”, i.e. independently of any dominant tenement, e.g. fishing rights.

1. Acquisition of Easements and Profits à Prendre Acquired by Prescription

Prescription is the acquisition of such rights by long user over a substantial period of time. Traditionally there were three methods of acquisition: (1) at common law; (2) under the doctrine of lost modern grant; and (3) under the Prescription Act, 1832. Regardless of the method of acquisition, a claimant must show user as of right i.e. that he/she has enjoyed the right and the servient owner acquiesced in that user or enjoyment. The use and enjoyment must be for a continuous period and regular user as opposed to intermittent user is required.

5.1 Common law

At common law, a claim based on user dating back to the year 1189. This has been regarded as impossible to establish and in practice the courts have accepted evidence of 20 years continuous user or user since living memory, however there is a substantial restriction on establishing such a claim, as it can be easily rebutted by showing user was not possible at some point since 1189 or by showing that at some point since 1189 there was unity of possession.

5.2 Doctrine of lost modern grant

This is based on a presumption from long user that a grant had been made some time after 1189 but had subsequently been lost. This method developed around the end of the 18^th century as rights under the common law could be easily defeated. A claim however can be defeated where it is shown during the entire period of user that there was nobody that could have lawfully made a grant. The application of this doctrine to the common law establishes that a claim will not be defeated by proof that the right could only have come into existence at some point after 1189.

5.3 Prescription Act 1832 [as extended to Ireland under the Prescription (Ireland) Act, 1858 from 1st January 1859]

Sections 1 and 2 of the 1832 Act lay down two periods of user...