What is an easement?

As easement is the entitlement of a person to use another person’s land in some way.  The types of easements that can be acquired informally through long use include rights of way, drainage, air, light and rights to lay and maintain pipes or cables.

An easement can be granted in writing or arise by necessity or implication.  Easements can also be created through long use of the right by another landowner.  Easements established by long use are called prescriptive easements and the Land and Conveyancing Law Reform Act 2009 (the “2009 Act“) introduced changes to how these type of easements are established.

The 2009 Act set time periods to be met for the establishment of easements over land through long use.  The transition period for the old time periods to be established expires on 30 November 2021.  The time to act is now if you have an unregistered easement acquired through long use.

What are the current relevant use periods and options for registration of prescriptive easements?

Until 30 November 2021, applications to register prescriptive easements can be made directly to the Land Registry (and, in disputed cases, to the Circuit Court) for assessment on the basis of:

• 20 years use for general applications; and
• 40 years use for foreshore.

What are the new relevant use periods and options for registration?

With effect on and from 1 December 2021, applications to register prescriptive easements can still be made to the Land Registry (and, in disputed cases, to the Circuit Court) but will be assessed on the basis of the new user periods set out in the 2009 Act, which also excludes any period of use prior to 1 December 2009:

• 12 years use for general applications;
• 60 years use for foreshore; and
• 40 years use for other lands owned by a State authority.

What should you do now?

If you are relying on prescriptive easements acquired over foreshore (following 40 years use) or other lands owned by a State authority (following 20 years use), you should register those rights to preserve them.  The opportunity and options available for registration of easements acquired by long use should be considered now, while there is still time to see an application through before the transition period expires.

It can take some time to prepare the application and for the Land Registry to complete it so you should seek legal advice as soon as possible.

Contact the team at MHP Solicitors who can advise and guide you through the process.