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

  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which were introduced by section 33 to 39 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”) are repealed by section 6(1) of the Land and Conveyancing Law Reform Act 2021 (“the 2021 Act”).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 30th 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 18th 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 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.

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. The period to be considered is the period next before the suit or action.

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 or for a declaration that he/she is entitled to the right under Section (4).

This section also requires that the right be “without interruption”.

Note: It appears that the Prescription Act 1832 does not apply to profits à prendre held in gross pursuant to section (5).

5.4 Land and Conveyancing Law Reform Act 2021 – Relevant Provisions

Pursuant to the provisions in section 2 of the 2021 Act:

  • In a case where the prescription period was completed before 1st December 2009, section 2(a) provides that an easement or profit may be acquired by prescription in accordance with the law that applied before that date.
  • In a case where the prescription period was not completed before 1st December 2009, section 2(b) provides that an easement or profit may only be acquired in accordance with the doctrine of lost modern grant as it applies at common law.

Section 3 of the 2021 Act provides for specific prescription periods where land is owned by a State Authority. This period is 30 years generally, or 60 years where the land is foreshore. Where land was formerly, but is no longer, foreshore the appropriate period is either 60 years generally or 30 years after the land ceased to be foreshore, at the election of the claimant.

5.5 Applications Lodged Post 30th November 2021

In a case that does not involve either ownership by a State Authority or foreshore, an applicant must be able to show user for a period of at least 20 years.

Where the prescription period was not completed before 1st December 2009, section 2(b) of the 2021 Act makes it very clear that an easement or profit may only be acquired in accordance with the doctrine of lost modern grant.

The position where the prescription period was completed before 1st December 2009 is not as clear, as section 2(a) allows for all three methods of acquisition under the prior law i.e. at common law, under the doctrine of lost modern grant, and under the Prescription Act 1832. However, user per the Prescription Act 1832 is required to be next before suit or action. As the Prescription Act 1832 was repealed pursuant to the 2009 Act, any application lodged after 30th November 2021 cannot be grounded upon the Prescription Act 1832, as user will not be in the period immediately before making then application.

The difficulties with establishment of prescription at common law are detailed above and these, combined with the need for user under the Prescription Act 1832 to be immediately before action mean that, in reality, any application lodged after 30th November 2021 should be grounded on acquisition under the doctrine of lost modern grant.

  1. Applications under Section 49A

An application under Section 49A of the 1964 Act may be made directly to the Authority, without the need to first apply for a court order. Where there is no dispute between the parties, an application may be made in the prescribed Form 68 of the Land Registration Rules 2012 to 2021..

 6.1 Section 49A of the 1964 Act (as amended by section 5 of the 2021 Act) states:

 49A. (1) Where any person claims to be entitled to an easement or profit à prendre by prescription, the person may apply to the Authority and the Authority, if satisfied that there is such an entitlement to the easement or profit à prendre may, subject to subsections (2) and (3), cause it, as may be appropriate, to be—

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

or both.

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

  • the land benefited by the easement or profit à prendre, to which other land is subject, is registered land, or
  • the claim is made as part of an application for first registration of that land”.

(3)Subsection (2) shall not apply to profits à prendre in gross

6.2 Application for Registration of an Easement or Profit à Prendre under Section 49A:

In all applications it must be shown in the Form 68 affidavit that the applicant has established sufficient facts to show proof of the acquisition of an easement or a profit à prendre by prescription.  

Except in the case of a profit à prendre in gross, the dominant property must either be already registered or the subject of an application for first registration.

  1. Leasehold Property

 It is possible for an applicant holding under a lease to acquire an easement or profit by prescription. A Section 49A application can be made to the Authority by a registered dominant leaseholder for the registration of a right over a servient property whether leasehold or freehold.

  1. Registration of Easement or Profit á Prendre – Application Checklist:

The following documents should be lodged with an application for registration of an easement / profit á prendre under the Section 49A procedure:

  • LR Form 17;
  • Prescribed Form 68 of the LR Rules 2012 sworn by the owner of the dominant tenement;
  • PRA compliant map delineating the full extent of the easement claimed;
  • Fees of €130
  • If the dominant tenement is unregistered land a first registration application in respect of same must be lodged together with appropriate fees.

 

  • The Form 68 Affidavit

The prescribed Land Registry Form 68 is comprised of seven paragraphs and three schedules. The form must be strictly adhered to with the appropriate paragraphs suitably adapted to establish the applicants claim.

  • Form 68 – Paragraph 1.

The application must be made by the registered owner of the dominant property or by the personal representative of a deceased registered owner. When made by a personal representative, such applications should be accompanied by the grant of probate / letters of administration. If the dominant property has been sold the application should be made by the purchaser. The applicant must establish the right was enjoyed continuously and openly without permission by them or their predecessor(s) in title for the requisite user period.

  • Form 68 – Paragraph 2.

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. The applicant must set out the origin and facts relied upon to show how the right has been established and it should be noted the right claimed in paragraph 2 should correspond with the right applied for in the first schedule. An applicant cannot rely on the affidavit of a predecessor, they must establish the claim in their own right. Particular attention should be shown to the notes in Form 68.

The applicant must confirm the following in paragraph 2:

  • there was at all material times a capable grantor and grantee,
  • that the right was capable of forming the subject matter of a grant,
  • the right claimed was acquired by prescription,
  • that the right claimed was not a public right of way, customary right, franchise, licence, easement of necessity or other implied right,
  • that the right claimed was not acquired by express grant or reservation,
  • that the exercise of the right has been without force, without secrecy and without permission
  • that the grant of the right would not have been illegal.

 

  • Rights not covered by the Form 68 procedure:

 

  • Public Right:

Such rights are distinguished from easements as these rights can be exercised by any member of the public and are not dependent on ownership of land.

  • Customary Right:

These rights can be distinguished from prescriptive rights as they are applicable to a particular district enjoyed by an undefined class of local people from time immemorial without interruption. Custom is claimed for a specific place – not person.

  • Implied Right:

Sections 40(2) and 40(3) of the Land and Conveyancing Law Reform Act 2009 provide as follows re implied rights:

  1. (2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which—

(a) is necessary to the reasonable enjoyment of the part disposed of, and

(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.

(3) This section does not otherwise affect—

(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,

(b) the operation of the doctrine of non-derogation from grant.

  • Easement of Necessity

A right of way of necessity as understood under Irish Law is one implied into the grant of a tenement to provide the grantee with a means of access to that tenement over the lands of the grantor where there is no other available access.

  • Form 68 – Paragraph 7:

In order for both an appurtenant right (on the dominant folio) and burden entry (on the servient folio – provided same is registered land) to be registered by the Authority the applicant must apply for same at paragraph 7 of the Form 68.

  • Form 68 – First Schedule:

The first schedule of the Form 68 should contain a full and unambiguous description of the easement or profit á prendre by reference to an application map suitably marked. The wording must give details of the nature and scope of the right claimed (e.g. for all purposes or for agricultural purposes only). The description should correspond with the colouring / lettering adopted on the map.

  • Form 68 – Second Schedule:

The second schedule of the Form 68 must contain a description of the Dominant Property owned by the applicant by reference to the folio number. However, if the application relates to part only of the dominant folio, or if the dominant property is the subject of a first registration application, then by reference to the property edged red on the application map.

  • Form 68 – Third Schedule:

 The third schedule must provide a description of the servient land and the name(s) and address(es) of the owner. If the servient land is registered, the text should refer to the folio number. If the servient land is not registered, the text should refer to the way in which the land is shown on the application map. Full and accurate names and addresses must be provided in the third schedule so that notice(s) may be served.

  1. Registered Land v Unregistered Land

The way in which an application is processed 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. Evidence to support the application should also be lodged where appropriate (e.g. certified 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 (i). 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 and Valuation Office searches may be required, 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 held under a lease.

 (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.

  1. 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 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”.

  1. Notice Procedure

11.1 Once a claim has been established – notice in Form 69 of the LR Rules 2012 is served on the servient property owners as provided in the third schedule. In the case of a deceased registered owner – notice will be sent to the personal representative / next of kin / solicitor acting for the estate.  Where the servient land is unregistered the applicant must set out the basis for their knowledge of the servient owner e.g. valuation office search, personal knowledge. An applicant is expected to make all reasonable efforts to establish the identity of the servient owner(s).

11.2 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 but this period may be extended at the discretion of the Authority.

In some cases, a site notice or newspaper notice may be required. A corroborating affidavit sworn by a party with knowledge of the facts may also be called for. The Authority may also seek 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(1) 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.

11.3 Objections

The Section 49A procedure is intended for non-contentious cases where there is no dispute between the parties. It should be noted the consent of the servient property owner is not required by the authority. Rather, they are entitled to object to the application by disputing the facts as claimed by the applicant in their form 68.   Objections should be on affidavit and disclose a valid ground for objection.  The Authority has no oversight/decision making role as to the use / operation / maintenance of the right claimed.  The servient owner can request a copy of the applicant’s grounding affidavit after notice is served on them and a copy of the affidavit of objection can be forwarded to the applicant’s solicitor.

11.4 Completion

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. The date of registration is the date of settling, not the date of lodgement.

The following note is to be added under the entry of the registration of the right on both the dominant folio (where registration as an appurtenance is sought) and servient 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”.

  1. Application for Registration of a Profit à Pendre held “In Gross” under Section 49A

For applications where the profit 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.

  1. Court Orders

 An easement or profit à prendre may be registered pursuant to a court order directing such registration. The court order is registered pursuant to 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).

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

A registered easement or profit may be cancelled pursuant to Section 69(4) in the usual circumstances e.g. where it is released or where there is unity of ownership and possession. Such a right may also be cancelled on foot of a court order directing such cancellation.

  1. Fees

The fee for this application is €130.

 

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

Revised 30 November 2021