Ministers McEntee and Browne welcome enactment of law to remove problems affecting rights of way

Land and Conveyancing Law Reform Act 2021 comes into effect today
averts ‘legal cliff-edge’ due to take effect immediately after 30 November
reforms law on prescriptive easements and profits à prendre

The Minister for Justice, Helen McEntee TD, has today welcomed the passage and enactment of the Land and Conveyancing Law Reform Act 2021. The Bill completed its passage through both Houses of the Oireachtas on Wednesday 24 November, and was signed into law by the President on Friday 26 November. The Act comes into operation today, Tuesday 30 November.

It repeals a number of changes to the law on prescriptive easements and profits à prendre, under the Land and Conveyancing Law Reform Act 2009, which were due to take effect on Wednesday 1 December.

The Minister said:

"I’m delighted to welcome the timely enactment of this urgent Act. It averts a legal cliff-edge that was due to occur on 1 December, when major changes to the law on private rights of way, and other prescriptive rights, were due to come into effect.

"I know that those impending changes have been causing worry and stress to many people, with farmers and homeowners at risk of losing important rights that have been enjoyed for many years without dispute. This Act repeals those changes, and protects acquired rights and acquired years of use."

Common examples of prescriptive easements include:

a right to use water or sewerage pipes, running under a neighbour’s land
a right of support between adjoining buildings that have different owners
a private right of way to access your home, or field, over a laneway that runs across your neighbour’s land

The Minister continued:

"Legal terms such as ‘prescriptive easements’ or ‘profits à prendre’ can sound very remote and arcane, but in practice, these are issues that have very direct and practical consequences for many people."

Serious concerns had been raised by stakeholders, including the Law Society and the Bar Council, about the changes that were due to take effect on 1 December 2021.

Minister of State James Browne, who steered the legislation through the Seanad, added:

"The Land and Conveyancing Law Reform Act 2009 was a major piece of reforming legislation, which repealed a large number of outdated laws and concepts, and modernised much of our land and conveyancing law.

"However, after carefully considering the concerns raised by stakeholders about this particular chapter of the 2009 Act, it was clear that in this particularly complex legal area, the 2009 provisions were not working as intended.

"I am grateful to the Law Society and the Bar Council, in particular, for their work to highlight these difficulties. I would also like to thank all the stakeholders who worked with my department to develop the provisions of the Bill, and the Attorney General for the valuable legal advice and drafting expertise provided."

As well as repealing the major changes due to take effect on 1 December 2021, under the 2009 Act, the Land and Conveyancing Law Reform Act 2021 provides that:

claims to validate or register a prescriptive right that are already pending on 30 November (before the courts, or the Property Registration Authority) will continue to be decided as they were before 30 November (as transitional cases, they were decided under the law that applied before the 2009 Act)
periods of long use that were acquired before or during the years 2009 – 2021 will not be lost on 30 November if no claim has been made, but can still be counted in a claim made after that date (the clock is not re-set)
new claims (brought after 30 November 2021) will largely be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 Act. This reflects the strong preference expressed by stakeholders, who see these as the most satisfactory and familiar set of rules available, pending more detailed review
it will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. But this will be optional, (as it was before the 2009 Act), rather than a mandatory requirement to avoid losing any rights acquired through long use

Minister McEntee concluded:

"The Act addresses the most pressing need, by repealing the major changes due to take effect on 30 November, and thus removing the deadline.

"However, more comprehensive reform may be required. The government has agreed to establish a time-bound review to identify any further changes that are desirable to ensure that this area of law is placed on a sustainable long-term basis.

"I hope that the review could start work early in the New Year, with a view to completing its work by the end of the summer."

Notes

The Land and Conveyancing Law Reform Act 2021, as enacted, is expected to be published shortly on the Oireachtas website. Meanwhile, further information is available at the following links:

The government approved drafting and publication of the Land and Conveyancing Law Reform Bill on 21 September 2021. The Bill follows extensive engagement by the Department of Justice with stakeholders including the Law Society, the Bar Council, the Property Registration Authority of Ireland and the Law Reform Commission.

Section 7 of the Act provides that it will come into operation on 30 November 2021. The Act refers to prescriptive easements and profits à prendre (these terms are explained below). It does not affect public rights of way, or rights that are set out in written title deeds.

Easements are certain private rights held by a property owner over the property of a neighbour. Common examples include:

a right of way to access farmland, or a home, over a laneway that runs over a neighbour’s land
a right to use water or sewage pipes running under a neighbour’s land
a right of support, between adjacent buildings that are in different ownership

Profits à prendre are less common, and are private rights held by a person (not necessarily a property owner) over another person’s land (not necessarily a neighbour) that involve taking a natural product of the land (such as fishing or shooting rights, or certain traditional seaweed gathering rights).

‘Prescriptive’ easements (or profits à prendre) are ones that have been acquired by prescription (that is, by long use as of right, where there is no written deed formally granting the right, or the written deed has been lost). Various legal conditions apply – in particular, the claimant must prove a minimum number of years of continuous use, as of right, in order to establish that s/he has acquired a prescriptive easement or profit à prendre. Twenty years was the usual period of use before the 2009 Act.

Under Part 8, chapter 1 of the Land and Conveyancing Law Reform Act 2009, as amended by the Civil Law (Miscellaneous Provisions) Act 2011, significant changes to the law on prescriptive easements and profits à prendre were due to take effect on 1 December 2021. However, serious concerns had arisen about these changes:

the 2009 Act’s requirement for mandatory registration of prescriptive easements or profits à prendre, was not operating satisfactorily in practice. It had not yet been possible to register many important prescriptive rights, which appear to have been enjoyed for many years without dispute
the new legal rules for acquiring prescriptive easements or profits, due to take effect on 1 December 2021, were causing legal uncertainty
these problems were leading to delays and problems in closing purchases, or drawing down mortgages or farm loans, where the property concerned depended on an unregistered prescriptive right (for example, where access to the public road depends on a private right of way over a lane owned by a neighbour)
the generally accepted legal view is that under the 2009 Act, the clock for counting the periods of use needed to establish a prescriptive right was due to re-start on 30 November 2021. After that date, only periods of use starting on/after 1 December 2021 could be counted in claiming a prescriptive right that was not already registered - even if the right had been enjoyed for many years before that

The main changes made by the 2021 Act are as follows:

Section 6 of the Act repeals sections 33 to 39 of the 2009 Act. Consistent with the strong preference of stakeholders, this repeals the major changes to the law on prescriptive easements (and profits à prendre) that were due to take effect after 30 November, thereby removing the imminent ’legal cliff-edge’
the Act sets out, instead, a number of new rules for the law on acquiring and validating prescriptive easements and profits à prendre. These follow extensive engagement with stakeholders including the Law Society, the Bar Council, the Property Registration Authority, and the Law Reform Commission
in general, new claims (made on/after 30 November 2021) will be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 Act. This reflects the strong preference of stakeholders, who see this as the most satisfactory and familiar set of rules available, pending the more comprehensive review announced by the Minister
under the Act, periods of long use that were acquired before or during the years 2009 – 2021 will not be lost on 30 November if the prescriptive right is unregistered, as under the 2009 Act, but can still be counted in a claim made after that date
applications based on periods of use that were completed before 1 December 2009 (the date on which the 2009 Act came into operation) will continue to be decided in accordance with the law that applied before that date
so will claims (applications to court, or to the Property Registration Authority to validate or register a prescriptive right), that are pending when the Act comes into operation
special arrangements are proposed in one respect for State land (including foreshore). Under section 3 of the Act (as under the 2009 Act) acquiring a prescriptive right against State-owned land, after 30 November 2021, will require longer periods of use than are required in a claim against land owned by a private person. But otherwise, the general rules above will apply. And under the 2021 Act, periods of use before 30 November 2021 will still be counted – unlike under the 2009 Act
it will still be possible to validate a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. But this will be optional, (as it was before the 2009 Act), rather than registration becoming a mandatory requirement to avoid losing any rights acquired through long use

Ministers McEntee and Browne welcome enactment of law to remove problems affecting rights of way

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