Easements comprise a category of rights in relation to land whereby an owner of land has an entitlement to enjoy rights over the land of another. They are to be distinguished from a lease or licence whereby an individual may be given limited permission to enjoy certain rights. An easement is proprietorial and so, the owner of the easement may transfer the ownership of it with his land to another or it may be inherited from him with his land.
What are typical examples of easements?
- A right of way to travel across private land belonging to another to gain access to your own land.
- A right to have a water pipe laid across land owned by another to bring water to your own land.
- A right for the building on your land to be supported by buildings on another’s land (e.g. terraced premises)
Acquiring an easement
This may happen by deed where a landowner intends to grant rights to another over his land. For instance, this might arise when the landowner is selling part of his land (e.g. a site) and has to grant certain rights to the owner of the sold land, which will be exercised over the land retained by the Vendor (e.g. a right of access over a private lane).
In many cases, however, there will be no deed or other written document granting the easement or rights but the rights may have been in existence for a long number of years. In these circumstances, the person using the rights will generally be said to have an easement by prescription (i.e. by long use).
Easement by prescription
The law in Ireland has always recognized the acquisition of easements by prescription where such rights have been in use on a continuous basis, openly and as of right for in excess of 20 years (a longer period will be required to acquire an easement over land in the ownership of the State). The existence of such an easement is indicated by evidence of its use.
Typically, on a sale of property with the benefit of such an easement, the Vendor will offer a detailed declaration setting out the history of use of the easement or right. The Purchaser then relies on that declaration as evidence of the existence of an easement by prescription.
Change to the Law
The law in relation to such prescriptive easements has changed effective from 1 December, 2009 pursuant to the Land and Conveyancing Law Reform Act, 2009. An easement may now be acquired by prescription after only 12 years continuous use of the right in question (whereas before at least 20 years use would have been required). Under the new provisions, it will be necessary to obtain a Court Order declaring the existence of the easement and generally also a further step to then register the Court Order on title.
The new law will only apply to a 12 year period commencing 1 December, 2009 so such rights may only be confirmed by Court Order after December, 2021.
The Old Law
The Land and Conveyancing Law Reform Act, 2009 provides for a 3 year period within which rights established by prescription under the old law may be confirmed. After the 3 year period (i.e. after 1 December, 2012), the old law will no longer apply and yet it will not be possible to have established rights under the new law for a further 9 years (i.e. after 1 December, 2012). In this intervening time period, there will be considerable risk for a person claiming to own an easement acquired by prescription that the easement may be disputed or challenged and ultimately lost. This is because there will be no provision at law to recognize such an easement. This will have serious implications in many cases and may mean that a property becomes virtually unsaleable.
To confirm an easement acquired by prescription under the old law, the owner of the easement must either 1) obtain a deed from the owner(s) of the land over which the rights exist or 2) must apply for and obtain a Court Order confirming the existence of the easement. It will be necessary to bring an action to obtain such a Court Order before 1 December, 2012 - otherwise the right to apply to court under the old law will be lost.
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