Registration of Easements in the Property Registration Authority

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1 Registration of Easements in the Property Registration Authority Thursday, 11 April 2019 Marcus Kennedy, Senior Associate Mason Hayes & Curran Dublin Dublin London London New New York York San San Franscisco Francisco

2 Topics 1. Typical Easements Encountered 2. Characteristics of an Easement 3. Express Easements (i.e. in writing) 4. Implied Easements (i.e. not in writing) 5. Long Use (or Prescription) 6. Property Registration Authority 7. Registration of Easements i. Deeds ii. Court Order iii. By Prescription Dublin Dublin London London New New York York San San Franscisco Francisco

3 Typical Easements Encountered A house accessed over a private road owned by another party. Houses with septic tanks and pipes on neighbouring lands. An urban property with an emergency exit through adjoining property. Managed estates where the roads and services have not yet been taken in charge. Water supply from lake, well or group scheme. Right to cut turf this is an appurtenant profit a prendre and treated as an easement. Dublin Dublin London London New New York York San San Franscisco Francisco

4 Characteristics of an Easement 1. There must be a dominant tenement (i.e. the land benefiting) and servient tenement (i.e. the land burdened). There must be proximity between the two properties. 2. The right must accommodate the land and be connected with its ordinary use. 3. Ownership/occupation must be by different parties. 4. The right must have a utility or benefit capable of precise definition (i.e. it may not be uncertain). Dublin Dublin London London New New York York San San Franscisco Francisco

5 Express Easements (i.e. in writing) Occurs where the easement is specifically granted (or reserved) in a writing e.g. in a deed or lease. The nature and extent of the easement should be described, for example:- The party that may exercise the right. The purpose e.g. pedestrian/vehicular. The route and physical dimensions clearly set out on a map. The land benefiting (Dominant) and the land burdened (Servient). Dublin Dublin London London New New York York San San Franscisco Francisco

6 Implied Easements (i.e. not in writing) Easements of necessity. Easements of common intention. Non-derogation from grant (e.g. lands conveyed for building purpose may imply rights of support or access from public road). Section 40 of the 2009 Act provides for implied easements where it was reasonable for the parties (if they had adverted to the matter) to assume that an easement arose by implication. Dublin Dublin London London New New York York San San Franscisco Francisco

7 Long Use (or Prescription) Prescription is the acquisition of rights by long use over a substantial period of time. Up to 30 November 2021 Period of use required is 20 years From 1 December 2021 Period of use required is 12 years (30 years in the case of a state authority) Non-contentious application may be made to the Land Registry to register the easement. Contentious Court Order must be obtained. Dublin Dublin London London New New York York San San Franscisco Francisco

8 Property Registration Authority Registry of Deeds i. Registration of Deeds/Documents not title. ii. Not compulsory (but best practice) iii. Title not guaranteed by the State iv. Property identified by written description contained in deed Land Registry i. The title is registered ii. Compulsory ii. Guaranteed by the State iii. Property identified by Land Registry map (boundaries not conclusive) Dublin Dublin London London New New York York San San Franscisco Francisco

9 Registration of Easements By Deed or Court Order Complete Land Registry prescribed form and lodge with relevant fees. By Prescription Full facts relating to easement claimed must be set out in an Affidavit:- i. Facts relied upon to show how right is established. ii. The exercise of the right has been without force, secrecy and without permission. iii. Characteristics of an easements must be shown. iv. Full description of the right must be set out. v. PRA compliant map identifying the right must be lodged. Dublin Dublin London London New New York York San San Franscisco Francisco

10 Registration Process Dublin Dublin London London New New York York San San Franscisco Francisco

11 Surveying for the registration of Rights of Way and easements Sarah Sherlock

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14 OSI & PRA Joint Statement The Property Registration Authority (Land Registry) and Ordnance Survey Ireland (OSI) enjoy a very close working relationship. The Land Registry utilises Ordnance Survey Ireland s topographic mapping to crossreference and associate their boundary information. This forms the basis of all Land Registry digital map data. Ordnance Survey Ireland is the national mapping agency of Ireland. It is the State Agency responsible for the official, definitive surveying and topographic mapping of the Republic of Ireland. As this mapping is topographic, it only represents the physical features on the ground at the time of survey. The features shown must fall within the specification for the survey scale and within agreed accuracy tolerances. OSI maps never indicate legal property boundaries, nor do they show ownership of physical features. Although some property boundaries may be coincident with surveyed map features, no assumptions should be made in these instances and consequently it is not possible to identify the position of a legal property boundary from an OSI map. OSI has a continuous mapping revision programme for the whole of the Republic of Ireland. Changes that have occurred on the ground since the property was registered may result in differences between later OSI map editions and the mapping used by the Land Registry. The Physical Boundary The Land Registry identifies properties not boundaries and never shows ownership of individual boundary structures such as walls, fences and hedges etc. It should also be noted that deeds rarely deal with such matters. Non-conclusive Boundary System The boundary system adopted by the Land Registry under the Registration of Title Act, 1964 is known as a non-conclusive boundary system. The non-conclusive provision dispenses with the need for determining the exact location of title boundaries when defining the extent of registered properties and the ownership of the physical features which mark the limits of a property is left undetermined. In the case of boundaries located within buildings, the exact line or plane of the title boundary is also left undetermined. The non-conclusive boundary system will not indicate whether a title boundary includes a hedge or a wall and ditch or runs along the centre of a wall or fence or runs along its inner or outer face or how far it runs within or without it or whether or not the land registered includes the whole or any portion of an adjoining road or stream. However, the location of the physical features within which the title boundary lies or the points between which an undefined title boundary runs must be accurately defined by the applicant on the map lodged for registration within the limitations of the scale of the application map. Where boundaries have been transferred to a larger scale or to a different map series, whether on paper or in a digital environment, measurements must not be expected to give a degree of accuracy greater than that of the smaller scale or older map series. Since the commencement of land registration in 1892, almost all registrations were recorded by reference to the topographic detail shown on OSI published map scales. OSI Cassini/County Series and Irish Grid published scales in the paper system were 1/10,560, 1/2,500 1/1,000 and some urban areas were published at 1/1,250 and 1/1,056, (both 1/1,250 and 1/1,056 were enlarged by OSI from 1/2,500 mapping).. Accuracy of the Land Registry s boundary data is, accordingly, limited to the survey accuracy and scale of the source map originally lodged and upon which registration was based. The Land Registry is unable to tell you precisely where a property boundary is located

15 PRA Preparation of Application Maps: Maps lodged for registration purposes must be prepared to the accuracy standard of the OSi map, be not less than A4 in paper size andclearlydisplaythe County andmap scale. Where new boundaries for registration are coincident with current OSi topographic detail they must be highlighted in colour. New boundaries for registration that are not coincident with current OSi topographic detail must be shown by thin red lines the centres of which denote the correct field positions of the boundaries. It is in the applicant's interest to ensure that maps are prepared in accordance with accepted land surveying practice and procedures. All slope distances must be reduced to the horizontal (and if necessary to mean sea level) before plotting work or area computation is carried out. The Authority may require the production of any map, survey or book for inspection under Section 16 (2) of the Act of Where part(s) of an adjoining river or roadway are included in an application for registration, separate area values should be stated for the parts on the map and a composite area quoted in the deed. In all cases an indication should be given as to whether adjoining roadways are in public or private ownership. Customers can submit ITM coordinate geometry captured directly in the field in the form of a CAD file. A hard copy must then be lodged with the application and must be printed at the OSi published scale for the area.

16 Basic Requirements for Acceptance of Maps in the Land Registry Special RegistrationMap Title Plan Official Map Search Land RegistryCompliant Map A Computer generated map - a CAD file with the geometry of the new property referenced to the OSi ITM coordinate reference system can be submitted in electronic form in compliance with the Registry s CAD requirements, together with a hard copy version that complies with the requirements as set out in Appendix 4. A copy of an approved scheme map Other requirements: Scheme Maps must be plotted from site surveys and must clearly show the reference number by which each holding or part thereof is to be identified in subsequent dealings and correspondence. Responsibility for the accuracy of the application map(s) lodgedrests with the applicant. To ensure that the application map(s) submitted for registration reflect the applicant s intentions, it is recommended that: The locations of site corners be unambiguouslydefinedand clearly marked on the groundbefore the surveyis carried out. Maps submitted for registration be preparedand certified by competentland Surveyors. Two grid intersections with ITM coordinate values must be clearly printed at the lower left and upper right corners on all scheme maps and multi-storey maps submitted for registration. The minimum hard copy map size must not be less than A4 and not larger than A3 and clearly display the County name and Map Scale. Maps attached to original lease and counterpart/copy must be identical as to colour and scale.

17 Fact bad data costs! Volume Variety Velocity Veracity Who created it? When it was created? Are there any changes since its making and if so what exactly are they? What purpose was it first compiled? DO NOT USE IT

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Title goes here. Application to Register an Easement/ Profit-à-Prendre Acquired by Prescription.

Title goes here. Application to Register an Easement/ Profit-à-Prendre Acquired by Prescription. Application to Register an Easement/ Profit-à-Prendre Acquired by Prescription. eamonn.morris@prai.ie Topics 1. Characteristics of an Easement. 2. Acquisition of an Easement. 3. Prescription Law Timeline.