The Land and Conveyancing Law Reform Act 2009 as amended by the Civil Law (Miscellaneous Provisions) Act 2011 (“The new Legislation”) requires the users of certain Easements to register such rights.
An Easement is a landowner’s right over another landowner’s property and includes Rights of Way, Wayleaves (usually for running pipes and services) and Profits a Prendre (rights to take from the land, i.e. to cut turf, take part of the soil, earth or rock, fish or shoot). The rights affected by the new Legislation are those which have been acquired informally through long use and are not registered in the Land Registry or Registry of Deeds.
The new Legislation provides that any unregistered easement will be extinguished following 12 years non-use of the easement in question.
The new Legislation further provides that applications to the Land Registry or Courts to register such Easements will only be possible on the expiration of certain time periods of us of the Easement, as follows:-
12 year continuous period of use for a general application
60 year continuous period of use for an application over foreshore
40 year continuous period of use for an application over any other lands owned by a State Authority.
Crucially, any period of use prior to the 1st of December 2009 is excluded.
However, a transitional measure was introduced to allow applications for registration of existing easements up to the 30th of November 2021 when the following periods of use can be established:-
20 year continuous period of use for a general application
40 year continuous period of use for an application over foreshore
20 years continuous period of use for an application over any other lands owned by a State Authority.
Easements affect the commercial value of land. Although they can be passed on without registration, it will be difficult to secure planning permission, build on or sell properties where such Easements, and in particular rights of access, are claimed but are not formally registered. Formal registration means that such rights are immediately apparent as a burden on the Land Registry folio of the landowner in question and brings clarity for the current and future owners of the land benefitting from, and subject to, the Easement.
If you have such a right, you should act now to give an application for registration the best chance of completing before the 30th November 2021. This will protect the Easement and safeguard the valuable right for the future benefit of your property.
The property team at BDM Boylan has extensive experience in this area of practice. Please do not hesitate to contact us should you require any guidance in relation to the nature of your right and the registration process generally.
Sarah O Keeffe,
Solicitor
BDM Boylan,
Clarkes Bridge House,
Hanover Street,
Cork,
Ireland.
Phone:
353-(0)21-4313333