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

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  1. Introduction
  2. Scope of Practice Direction
  3. Relevant Legislation
  4. The Law of Easements
  5. Proof of Acquisition of Easements and Profits à Prendre Acquired by Prescription
  6. Leasehold Property
  7. Applications under Section 49A
  8. Mapping
  9. Notice
  10. Application for Registration of an Easement or Profit à Pendre held “In Gross” under Section 49(1)(A)
  11. Application to Cancel an Easement or Profit à Prendre Acquired by Prescription
  12. Court Orders
  13. Summary
  14. Fees

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”).

2. 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.

Section 35 (1) 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 allow for claims based on prescription, that have been acquired prior to the introduction of the 2009 Act, or in the process of being acquired (under the transitional provisions in Section 38 (b) of the 2009 Act), to be made under the procedure set out herein.

The transitional provisions of the 2009 Act have been extended by the 2011 Act, the effect being that a claim for rights acquired by prescription under the law prior to the 1st of December 2009, or in the process of being acquired, can be established up until the 30th November 2021. The consequent amendment to the 1964 Act provides for the procedure under Section 49A.

The procedure under Section 49A [1] is intended for cases where there is no dispute between the parties. [2] Alternatively, an application may still be made directly to court.

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, [3] easements of necessity or to natural, [4] public [5] or customary rights. [6]While Section 49A does not apply to implied grants or easements of necessity application for registration of same can be made by lodging a court office copy of the relevant court order [Section 69(1)(h) of the 1964 Act].

Where a claim to an easement or profits à prendre based on prescription has already 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 (see Paragraph 11).

3. Relevant Legislation

  • Registration of Title Act, 1964, [No. 16 of 1964]
  • Registration of Deeds and Title Act 2006 [No. 12 of 2006]
  • Land and Conveyancing Law Reform Act 2009 [No. 27 of 2009]
  • Civil Law (Miscellaneous Provisions) Act 2011 [No. 23 of 2011]
  • Land Registration Rules, 2012
  • Registration of Title Act, 1965 (Commencement Order) 1966 [S.I. No 167 of 1966]
  • Registration of Deeds and Title Act 2006 (Commencement) Order 2006, [S.I. 271 of 2006]
  • Registration of Deeds and Title Act 2006 (Commencement) (No. 2) Order 2006, [S.I. 511 of 2006].
  • Land and Conveyancing Law Reform Act 2009 (Commencement) Order 2009, [S.I. No. 356 of 2009] and [S.I. No. 471 of 2009 (Section 132)]

4. The Law of Easements

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 can not only exist between neighbours but is commonly held in gross i.e. independently of any land owned by the holder of the profit. A profit is a right to go on 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.

To constitute an easement a right must satisfy four requirements:

(i)   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. [7] 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.

(ii)   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. [8]

(iii)   The ownership or occupation of both lands generally speaking, must be in the hands of different persons.

(iv)   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. [9]

A profit à prendre is the right to take something from another person’s land. Such rights fall into three categories:

(i)    Those which are appurtenant to a dominant tenement e.g. mineral, turbary rights.

(ii)    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).

(iii)    Those held “in gross”, i.e. independently of any dominant tenement, e.g. fishing rights.

5. Proof of 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 three methods of prescription were used i.e. (1) at common law, (2) under the doctrine of lost modern grant and (3) under the Prescription Act, 1832. Generally speaking, no matter which method is claimed as the basis for establishing acquisition of rights, 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 which has been interpreted as regular user as opposed to intermittent user. [10]

5.1 Common law

At common law, 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 Under the 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 18th century as rights under 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 only addition that the application of this doctrine made to the law was to establish 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 Under the Prescription Act 1832 [as extended to Ireland under the Prescription (Ireland) Act, 1858 from 1st January 1859][11]

Sections 1 and 2 of the 1832 Act lay down two periods of user whereby easements and profits may be acquired by prescription, i.e. in the case of a shorter period being shown, 20 years’ user of an easement (other than of light) and 30 years’ user of a profit. It provides that the easement or profit claimed cannot be defeated by showing only that it was first enjoyed at any time prior to the 20 or 30 year period.

Where a claimant can show longer period of  user, i.e. 40 years for an easement (other than light) and 60 years for a profit the Act is more positive and the right is deemed “absolute and indefeasible” unless enjoyed by written consent.

Note: In respect of the shorter period oral consent will always defeat a claim, whether given at the start or during the statutory period. However oral consent given at the start of a 40 year claim will not defeat it. Oral or written consent given during the statutory period however, will defeat a claim. [12]

 Section (3) of the 1832 Act applies to easements of light, providing for a prescriptive period of 20 years without interruption. The right shall be deemed “absolute and indefeasible” unless enjoyed by written consent. It is not necessary to establish user as of right in the context of easements of light.

To establish an easement under the Act, the claimant must bring an action either for infringement of the right for a declaration that he/she is entitled to the right under Section (4). The period to be considered is the period next before the suit or action.

This section also requires that the right be “without interruption”. Section (4) provides that an act will be regarded as an interruption only if the claimant submits to it or acquiesces in it for one year after acquiring notice of the interference and of the person responsible for it. The interruption must be factual in that the user must have actually been stopped. The one year does not start to run until the claimant is aware of the interruption and of the identity of the person interrupting. [13]

Section (7) provides for deductions in that in the case of a claim under the shorter periods, there must be a deduction in respect of any period during which the servient owner was under a disability such as being an infant, a lunatic or a tenant for life. [14] It is not necessary to deduct periods of disability for the longer period. [15]

Section (8) excludes from computation of the longer period the term when the servient tenement was held under a “term of life, or any term exceeding 3 years from the granting thereof, provided the claim is resisted by the reversioner within three year of it determination.[16]

Note:  Neither Sections (7) or (8) apply to an easement of light.

Note: It appears that the Prescription Act 1832 does not apply to profits à prendre held in gross under Section (5). [17]

6. Leasehold Property

Irish courts have held the following in respect of leasehold property:

(i) Prescription against a limited owner or tenant can be claimed under the Prescription Act, 1832 and under the doctrine of lost modern grant but there is no authority on whether such a claim can be established at common law.

(ii) A tenant can probably prescribe against other land held by his own landlord under the Prescription Act, 1832 but not under the doctrine of lost modern grant and there is no authority on this at common law.

(iii) A tenant can prescribe against another tenant holding under the same landlord under the Prescription Act, 1832 and probably under the doctrine of lost modern grant and possibly at common law. [18]

7. Applications under Section 49A

 An application can be made directly to the Authority without the need to first apply for a court order. [19]

7.1 Section 49A of the 1964 Act states: [20]

49A.—(1) Where any person claims to be entitled to an easement or profit à prendre and the relevant requirements set out in sections 33 to 38 of the Land and Conveyancing Law Reform Act 2009 have been met, that person may apply to the Authority and the Authority, if satisfied that there is such an entitlement to the easement or profit à prendre concerned, may cause it, as appropriate, to be—

(a) registered as a burden under section 69(1)(jj),

(b) entered in the register pursuant to section 82 or, in the case of a profit à prendre in gross, in the register of ownership maintained under section 8(b)(i).

(2) Subsection (1) applies only in relation to claims in respect of which—

(a) the land benefited by the easement or profit à prendre, to which other land is subject, is registered land, or

(b) the claim is made as part of an application for first registration of that land”.

Section 69(1) of the Act of 1964 was amended by the insertion of the following paragraph after paragraph (j): [21]

“(jj) any easement or profit à prendre where the Authority is satisfied, pursuant to section 49A, that there is an entitlement to such an easement or profit à prendre”.

This provides for registration of the burden on the servient tenement.

 

7.2 Application for Registration of an Easement or Profità Prendre other than “In Gross” under Section 49A:

In all applications it must be shown on affidavit that the applicant has established sufficient facts to show proof of the acquisition of an easement or a profit à prendre by prescription. The claim is to be grounded pursuant to the law on prescription prior to the 1st of December 2009. Section 38(b) of the 2009 Act (as extended from 3 years to 12 years by Section 38 of the 2011 Act) provides for a transitional period i.e. for claims already acquired under the law, or for claims that will “ripen” and be acquired during the transitional period i.e. by the 30th November 2021. Therefore an application can be made based on the law as it existed prior to the 2009 Act, i.e. prior to the 1st December 2009 up and until 30th November 2021. The applicant should ensure that they fulfilled the statutory requirements of the Prescription Act and/or met the requirements set down by case law regarding acquisition under common law or under the doctrine of lost modern grant.

The applicant must expressly ground the claim i.e. show how and against whom the relevant user period has been acquired. Full details must be provided in paragraph 2 of the Form 68 affidavit in order to meet the required proofs. Particular attention should be shown to the notes in Form 68, e.g. Paragraph 2 states an applicant must establish that there was at all material times a capable grantor and grantee, that the right was capable of forming the subject matter of a grant, that the right claimed was not a public right of way, customary right, franchise, licence, implied right or easement of necessity,  that there has been the requisite period of user, that the exercise of the right has been without force, without secrecy and without permission and that the grant of the right would not have been illegal.

The application will depend on whether some or all of the land comprises registered or unregistered land:

(i)  Where both the dominant and servient lands comprise registered lands:

The title to both dominant and servient lands is registered and the dominant registered owner applies for the entry of an appurtenant right based on the acquisition of the easement or profit à prendre by prescription. The claim to be substantiated by affidavit in Form 68 and the proofs fully set out therein, together with all known details for notice on the servient registered owner (if registered owner’s address differs from the address shown on the register).  Notice will issue on the registered owner of the servient tenement in Form 69. If the servient owner is no longer on title notice will issue on the executor or personal representative of his/her estate, and/or to the solicitor acting in the estate. If no grant has issued in the estate of a deceased registered owner, notice will issue to the next of kin entitled to a share in the estate at the date of the deceased registered owner’s death. Care should be taken in the affidavit to ensure that both on the facts of the case and on the law, long user has been established such as to support a claim of acquisition based on one of the three methods of acquisition. Paragraph 2 should be fully comprehensive. Evidence to support the application should also be lodged where appropriate(e.g. evidence of death such as copy death certificate, copy grant of letters of administration/grant of probate).

(ii)  Where the dominant land is registered and the servient land is unregistered:

The same proofs as to acquisition are required as at (1). The identity of the servient owner is to be shown to the satisfaction of the Authority as far as possible. If, for example, the owner is unknown, enquiries are to be made locally as far as possible and/or to be supported by Valuation Office searches, to show who is the stated owner/occupier and/or to identify the stated owner of any superior interest.

It is particularly important to make sufficient enquiries if the dominant tenement is leasehold, as in certain cases, the prescriptive right may not have been acquired (See Paragraph 6 Supra).

Note: Rule 46(4)of the Land Registration Rules 2012 has been amended by Rule 2 of the Land Registration Rules 2013 to read:

Where the servient land is unregistered and satisfactory evidence of the identity of the owner of the servient land is not produced the Authority may direct such searches, advertisements, notices and enquiries as it may deem necessary”.

(iii)  Where the dominant land is unregistered and the servient land is registered:

The same proofs as to acquisition are required as at (i). However an application for first registration must be made at the same time in the appropriate form. (see our Practice Direction – First Registration and Other Examiners cases). It is not possible to register the interest in the absence of a first registration application as Section 49A (2) clearly states that the dominant land must either be already registered land or the subject of an application for first registration.

(iv) Both dominant and servient lands are unregistered

An application for first registration must be made in respect of the dominant land before such rights can be registered. The proofs as set out at (i) (ii) and (iii) are required.

8. Mapping

In all cases the application must be accompanied by a suitable map i.e. either a ‘Land Registry Compliant Map’ which is an ITM (Irish Transverse Mercator) map published by the Ordinance Survey or by a Land Registry ITM coordinate referenced map or such other map which complies with Land Registry Mapping regulations, with the right(s) claimed clearly highlighted and identified thereon. See mapping requirements as set out in Practice Direction “Mapping Practice”

9. Notice

Notice will be served on servient owners and any interested parties in Form 69 e.g. in certain cases notice may be served on the owner(s) of burdens registered on the dominant tenement such as owners of a prior burden (Note: Rule 50 of the Land Registration Rules prescribes service of notices of a proposed registration). The Rule allows for notices to be served on such persons as the Property Registration Authority may direct. The period allowed for reply/objection etc. is usually 21 days with an additional 5 days allowed for service of notice. In suitable circumstances a newspaper notice may be required (in a newspaper circulating in the area, the newspaper with the greatest circulation, or in another County or Country as directed).

By virtue of Rule 18 of the Land Registration Rules 2012 searches, paper advertisements, notices and enquiries may be directed as are deemed necessary in the circumstances of the case. Corroborating affidavits by a party with knowledge of the facts may also be called for in a suitable case. The Authority may call for an indemnity, under the seal of the applicant, indemnifying the Property Registration Authority and the State against all losses, damages or compensation, arising from effecting the applicant(s)’ registration as full owner of the easement or profit à prendre in suitable cases.

Where there are competing claims of fact in respect of a claimed easement or profit à prendre, the Authority may refuse the application, issue an order refusing registration which can then be appealed to court under Section 19(2) of the 1964 Act.

Alternatively the application may be withdrawn. A party entitled, may of course apply directly to court under Section 35(1)(a) of the 2009 Act to establish such rights.

In the absence of the application being contested, registration may proceed.

When a full case has been made out, notices served and no objection received, the title to the right will be entered on the register i.e. on the date of settling of the application, when the full investigation of the right claimed is complete and the settling officer is satisfied that a full case has been made out to the satisfaction of the Authority (i.e. not the date of lodgement of the dealing).

The following note is to be added under the entry of the registration of the right on both the dominant and servient tenement (if applicable) folio:

“Registered under Section 49A of the Registration of Title Act, 1964 on the basis of an application under the law prior to the Land and Conveyancing Law Reform Act, 2009”.

10. Application for Registration of an Easement or Profit à Pendre held “In Gross” under Section 49(1)(A)

For applications where the interest is held “in gross” an application may be made in Form 68 with the same proofs. The registration of the ownership of a right held in gross will be made under Rules 46 and 187, in the subsidiary register maintained under Section 8(b)(i) of the Registration of Title Act 1964.

11. Application to Cancel an Easement or Profit à Prendre Acquired by Prescription

Section 39 of the 2009 Act [as amended by section 39 of the  2011 Act] introduced a qualified extinguishment of easements and profits à prendre acquired by prescription or implied grant or reservation, and provided that on the expiry of a 12 year period of non user of an easement or profit acquired by prescription or implication, the easement or profit is extinguished except where it is protected by registration in the Registry of Deeds or the Land Registry, as appropriate. It has no application to rights created by express grant.

The amendment in the Act of 2011 i.e. the insertion of a new sub-section 39(1)(a), provides that subsection (1) [which deals with extinguishment as stated above] does not affect the exercise by the Authority of its power to modify or cancel any entry in accordance with Section 69(4) of the 1964 Act.

Cancellation may also be made in accordance with a court order made under the jurisdiction referred to in Section 39(3). Note: That relates to easements and profits however acquired, i.e., including by express grant or reservation, whereas subsection (1) is confined to such rights acquired by prescription or implied grant or reservation.

Where the easement or profit has been registered in the Registry of Deeds or the Land Registry, as appropriate, such right can otherwise be extinguished by the Authority in the usual circumstances for example where it is released or where there is unity of ownership and possession or as stated under order of the court.

12. Court Orders

An application may proceed under Section 35 (1) on foot of an order obtained in court  (or under a successful appeal to a refusal of registration under Section 19(1) of the 1964 Act,) by virtue of which an applicant establishes the acquisition of an easement or profit à prendre. The court order is then capable of registration under Section 69(1)(h) of the 1964 Act. Care should be taken that a suitable map is produced that will meet registration requirements (See Paragraph 4 above regarding mapping requirements).

13. Summary

The amendments made to the 2009 Act provides for a scheme of registration of easements and profits à prendre acquired by prescription to be made directly to the Property Registration Authority under Section 49 (A) of the 1964 Act in the manner set out herein.  Arising from the transitional provision in Section 38(b) of the 2009 Act (as amended), until 30th November 2021 claims will be grounded upon the law as it existed prior to the introduction of the 2009 Act i.e. on one of the three established methods of acquisition for those rights acquired by 1st December 2009, or in the process of being acquired up until 30th November 2021.

After 1st December 2021 all claims must then be made under the statutory method of acquisition provided for in Section 35 of the 2009 Act as the transitional provisions in Section 38(b) will by then have expired. Any party who has not registered rights acquired under the old law within the transitional period will then have to establish a claim based on the 2009 Act.

14. Fees

The fee for this application is €130.

John Deeney
Acting Chief Executive Officer
Property Registration Authority
9th December 2011
Updated 01 February 2013

 

[1] Established under Part 12 and 13 of the Civil Law (Miscellaneous Provisions) Act, 2011 with commencement under Section (1)(10) on 2nd August 2011( “the 2011 Act”)

[2] See explanatory memorandum to the 2011 Act

[3] Rights implied by the principle of non-derogation from grant, ways of necessity, common intention of the parties and the Rule in Wheeldon and Burrows. The first three methods of acquisition were retained by the 2009 Act, but the rule in Wheeldon and Burrows was abolished in Section 40(1) and replaced with Section 40(2) of that Act.

[4] Rights which are protected by the law of torts such as

[5] Such as public rights of way, public fishing rights

[6] Certain rights enjoyed by an undefined class of local people over land of another from time immemorial e.g. right to the use of village green. Note: Such rights continue effect without registration for example public rights under Section 72(1)(f) and customary rights under  Section 72(1)(g)of the 1964 Act respectively.

[7] J.C.W. Wylie, Irish Land Law 4th ed.  (Dublin, Bloomsbury Professional, 2010)

[8] P. Bland, Easements 2nd ed.  (Dublin, Thomas Reuters (Professional) Ireland Limited, 2009)

[9] Ibid at page 11, Bland states that there are two components to this 4th requirement, the capacity of the parties and the validity of the right.

[10] Supra No. 7, at page 408

[11] Note: The Prescription (Ireland) Act 1858 provides an additional basis for a claim and does not exclude the pleading of common law or the doctrine of lost modern grant as the basis for acquisition.

[12] Law Reform Commission, LRC 66-2002, Report on the Acquisition of Easements and Profits a prendre by Prescription (Dublin; Law Reform Commission, 2002), at Para 1.15

[13] Ibid, at Para 1.17

[14] Supra No. 7, at page 418

[15] J. Mee, “Reform of the law on the Acquisition of Easements and Profits a Prendre by Prescription” (2005) 12(1) DULJ 86

[16] Supra No. 8 at page 285

[17] Supra No. 12, at Para 2.27

[18] Supra No. 7 at page 410

[19] Section 35 of the 2009 Act as substituted by Section 37 of the 2011 Act

[20] As inserted by Section 39 of the 2011 Act

[21] As amended by Section 40 of the 2011 Act