Bill to clarify rights of way introduced

Major changes on prescriptive easements and profits were due December 1

Cabinet approval has been secured to amend the provisions in the Land and Conveyancing Law Reform Act 200 and clarify how rights of way are applied across the country.

Minister for Justice, Heather Humphreys, introduced the change, which will remove an upcoming deadline that was a matter of “significant concern”.

The amendments are 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.

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 November 30, 2021. After that deadline, prescriptive rights could still be validated and registered, but only under new rules taking effect on 1 December.

Speaking after Cabinet today, Minister Humphreys said she had listened carefully to the concerns raised by stakeholders, including the Law Society and the Bar Council. “That is why I am acting quickly to clarify the legal uncertainty that has arisen and to put in place an appropriate solution. The Government has today approved my plans for a short amending Bill, to be enacted before the November deadline, which will address the main problems arising in the short term. We will remove the major changes to the law on prescriptive easements and profits that were due to take effect on 1 December, thereby removing the imminent deadline.

To ensure that the legislation can be enacted in good time before the November 30 deadline, the Minister intends to seek a waiver from pre-legislative scrutiny, and to seek early signature of the Bill by the President.

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.

Provision will also be made to ensure clarity on the situation of applications already made to court or to the PRA that have been lodged, but not decided, before these changes come into effect. Public rights of way, and easements (or profits à prendre) held under a written title deed, are not affected by the changes mentioned in this press release.