Rights of way are one of the most common forms of easements you are likely to encounter in Irish law. And they can be sources of real tension and disputes between neighbours.
They can also cause problems when buying or selling property as the vendors of a rural house with an unregistered right of way will have difficulty selling it as the purchasing solicitor will have concerns about providing a certificate of title for the purchaser’s lender.
What is an easement?
An easement is a right over the land of another, which attaches to land. The land with the right attached is called the “dominant land”, and the right transfers with the land when the land is transferred.
The land over which the easement is held is called the “servient land”.
The most common type of easement is a right of way.
Another type of easement is called “profits-a-prendre” which are rights to take from the land of another. Examples include the right to cut turf/timber, the right to fish, quarry, extract minerals from another’s land.
Two of the most common methods of acquiring rights of way, by prescription and by the doctrine of the lost modern grant, have been abolished by the Land and Conveyancing Law Reform Act, 2009.
Of course a right of way can always be created by a Deed of Grant by one landowner to another.
In order to now claim legal title to an easement such as a right of way it is necessary to get a Court order and register it with the Property Registration Authority either in the Land Registry or in the Registry of Deeds.
Owners or easements prior to the commencement of the Land and Conveyancing Law Reform Act, 2009 have three years within which to bring their application.
However, this period of three years, which would have expired on 1 February 2012, by Section 38 of the Civil Law (Miscellaneous Provisions) Act 2011 this was extended to 1 December 2021. This applies to easements that are acquired by prescription but also to easements that have been granted by deed where these are not already registered.
In order to obtain an easement by prescription by way of Court application now you will have to prove that you were a user as of right for a minimum period of 12 years (or 30 years where the servient owner is the State).
A user as of right means use without interruption without force, without secrecy or without consent of the servient owner. This is important as it means if you are using the land with oral or written consent of the servient owner your claim to a right of way will fail. (See also houses for sale in Ireland and related property law articles)
Obtaining an Easement
The most common way is by deed of easement. This is a grant of easement-for example a Grant of Right of Way.
When you buy a house in a housing estate you will be granted easements over the land of others to allow you access to pipes etc. These types of easements are registered with the Property Registration Authority either in the Registry of Deeds or Land Registry.
The second most popular way is by “prescription”. This occurs where a right has been exercised over a long period of time (20 years), even though there may be no document or deed confirming this.
The right would have been exercised openly, without force, and without consent of the servient land owner.
This type of easement would not have been registered with the Property Registration Authority. When the land was being transferred, though, the vendor would give a statutory declaration setting out his history of use of the easement. The purchaser would then rely on this statutory declaration to show his right to use the easement once he obtains the land.
A third category of easement arises: implied easements or easements of necessity. These were covered by a rule known as the Rule in Wheeldon v Burrows.
However, this rule was abolished and replaced by section 40 of the Land and Conveyancing Law Reform act, 2009:
40.— (1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).
(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.
Section 34 of the act abolishes acquisition of an easement by prescription:
34.— Subject to section 38, acquisition of an easement or profit à prendre by prescription at common law and under the doctrine of lost modern grant is abolished and after the commencement of this Chapter acquisition by prescription shall be in accordance with section
Section 35 sets out how to obtain an easement based on prescription:
35.— (1) An easement or profit à prendre shall be acquired at law by prescription only on registration of a court order under this section.
(2) Subject to subsection (3), in an action to establish or dispute the acquisition by prescription of an easement or profit à prendre, the court shall make an order declaring the existence of the easement or profit à prendre if it is satisfied that there was a relevant user period immediately before the commencement of the action.
(3) The court may make an order under subsection (2) where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all the circumstances of the case.
(4) An order under subsection (2) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
Interruption of use
If use of the land is interrupted for a continuous period of one year will break the relevant user period and prevent the acquisition of the easement. However, there is an exception to this in section 37(1) which provides that if the interruption occurs when the servient owner is incapable of managing his affairs because of a mental incapacity the running of the user period is suspended.
Note:
- A servient owner is the owner of land subject to an easement;
- Servient land is land subject to an easement;
- Dominant land is the land benefited by an easement.
Civil law (Miscellaneous Provisions) Act 2011
The Civil law (Miscellaneous Provisions) Act 2011 made further tweaks to the law in this area by making amendments to the Registration of Title Act 1964 and the Land and Conveyancing Law Reform Act, 2009. It provides that where there is agreement between landowners (an uncontested easement) there is no need to seek a Court Order and you can register your easement with the Land Registry.
The Civil law (Miscellaneous Provisions) Act 2011 also gives credit to the dominant owner for each year of use which has already passed prior to the commencement of the Land and Conveyancing Law Reform Act, 2009.
Register your easement with the PRA
It is important to register an easement with the Property Registration Authority, if it is not already registered. If it is not registered the easement may be extinguished (if there is continuous non use for 12 years) and the 12 years required to obtain it again will start on 1st December, 2021.
Section 36 of the Land and Conveyancing Law Reform Act, 2009 deals with a tenant acquires an easement:
36.— (1) Where the dominant owner acquiring an easement or profit à prendre under section 35 owns a tenancy only in the dominant land, the easement or profit à prendre attaches to that land and when the tenancy ends, passes to the landlord.
Section 39 of the act deals with extinguishment of an easement or profit a prendre.
The application to the PRA without a court order is under section 49A Registration of Title Act, 1964
Registration of easements and profits à prendre in certain cases.
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. ]
Summary
There are now 3 ways to obtain an easement:
- A Deed of Easement, that is a formal grant, between the parties
- By prescription and filing an affidavit with the Property Registration Authority, provided there is no objection (see section 37 of the Civil law (Miscellaneous Provisions) Act 2011)
- By Court application and order (see section 35 of the Land and Conveyancing Law Reform Act, 2009)
The application to the Property Registration Authority referred to at number 2 above involves a detailed application with the PRA who will then send a notice of the application to the landowners over whose land the right of way is claimed. If there is no objection then the PRA will register the right of way to benefit your property and it would be registered as a burden on the folios of the affected land.
If there is any dispute, however, with these landowners then the Court route (number 3 above) is the only one open to you as the PRA will refuse to register it.
Public Rights of Way/Public Roads
Public roads in Ireland can be classified as national, regional, or local. However, there are also roads which have a public right of way over them, but may be classified as “private” because the local authority has not formally taken the road in charge.
So, in these circumstances a public road may be maintained by the council, or maintained privately.
Taking in Charge
All roads built by the local authority automatically become public roads, and the road is the responsibility of the local authority and there is no need for a formal declaration of “taking in charge”.
The taking in charge process will involve the publication of a notice in the local newspaper, with the opportunity given to the public to object.
Public Right of Way
There are very few public rights of way in Ireland that are not public roads, maintained by the council. The Roads Act, 1993 obliges local authorities to protect the public’s right to access public rights of way.
Therefore, a public road may be the responsibility of the local authority, without a formal taking in charge procedure having taken place.