The Minister for Justice, Heather Humphreys, TD, has secured Cabinet approval to amend the provisions in the Land and Conveyancing Law Reform Act 2009.
This seeks to remove an upcoming deadline regarding easements, such as rights of way, held by a property owner over a neighbour’s land, and profits à prendre. Profits à prendre are other rights over another person’s land, such as fishing or shooting rights, that have been acquired by ‘prescription’, which is by long use as of right, where there is no written deed formally granting the right, or the written deed has been lost.
The Law Society of Ireland has welcomed Government plans to amend the provisions in the Land and Conveyancing Law Reform Act 2009. The change comes following extensive Law Society engagement with the government on the issue in recent months.
This amendment means that easements, such as a right of way, and rights to maintain water and sewerage pipes on neighbouring land, will no longer have to be registered with the Property Registration Authority by 30 November 2021. The issue was expected to cause a backlog of court cases by those trying to protect their rights to access.
Prior to the introduction of the 2009 Act, prescriptive rights of way were usually verified by simple statutory declarations of long use. The 2009 Act introduced a new requirement for a prescriptive right to be verified by a court order and registered with the Property Registration Authority (PRA).
An amendment to the law, made in 2011, provided that, if the prescriptive right was not contested by the owner of the land affected by it, the claimant could apply directly to the PRA to validate and register their right based on long use.
The deadline for applications under the old rules made to court, or directly to the PRA, was also extended to 30 November 2021. After that deadline, prescriptive rights could still be validated and registered, but only under new rules taking effect on 1 December.
Minister Humphreys stated, “I know that the position that was due to apply after 30 November has been a cause of great concern for many. I have listened carefully to the concerns raised with me by stakeholders, including the Law Society and the Bar Council. I am satisfied that, if not addressed, this deadline was likely to lead to a large volume of unnecessary court cases to protect rights which have been enjoyed for generations, and to cause stress between neighbours, unnecessary legal costs, and added court backlogs.
The Minister also outlined her commitment to more comprehensive reform in this area, saying,
“The amending Bill will address the most pressing need by removing the end of November deadline. However, it is clear that more wholesale reform is needed. I intend to establish a time bound review that will identify the best long-term, sustainable provisions for the law in this area.”
The law applicable to prescriptive easements and profits will largely be reverted to the judge-made law that applied before the 2009 Act. 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.
“The 2009 Act has already been causing difficulties for people when buying and selling property, and for people taking out mortgages. The looming deadline of 30 November 2021 would have made the situation considerably worse,” said Mr Paddy Sweetman, Convener of the Law Society’s Easements Task Force.
“We thank the Minister and the Government for their review of this Act and are grateful that the Minister has recognised the need for a ‘wholesale reform’ in this area. We look forward to receiving further clarity on the issue and the amendments being brought forward,” he said.
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