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. 4. Making an Application Documents Required Form 68 Affidavit 5. Processing Section 49A Applications. 6. Problems Encountered with Applications. 7. Objections. 8. Questions.
Characteristics of an Easement: 1. Dominant and Servient Tenements (cannot be held in gross). 2. Dominant and Servient Tenements must be held in different ownerships. 3. The right must accommodate the Dominant Tenement. 4. The right must be capable of forming the subject of a grant (e.g. not illegal, uncertain right to a view).
Historical Acquisition of an Easement. 1. Express grant or reservation. 2. Implied grant or reservation. 3. Common Law. 4. Doctrine of lost modern grant. 5. Prescription Acts 1832 1858.
Law on Prescription - Timeline. 1) Common Law user as of right since time immemorial (1189). 2) Doctrine of the lost modern grant. 3) Prescription Act 1832, extended to Ireland by Prescription (Ireland) Act 1858. Easement 20 years. Profit 30 years.
Law on Prescription - Timeline. 4) Land & Conveyancing Law Reform Act 2009 (Part 8). Abolishes common law and doctrine of lost grant. Only acquire a prescriptive easement on registration of a Court Order (Section 35). 3 years from 1 st December 2009 to apply under old law (Section 38). New statutory Periods: Easement/Profit = 12 years. State Land = 30 years. Foreshore = 60 years. Easement extinguished after 12 years non-use, unless registered (does not apply to express grant or reservation).
Law on Prescription - Timeline. 5) Civil Law (Miscellaneous Provisions) Act 2011: Amends 2009 Act as follows: Section 41 - Additional Method Section 49A of Registration of Title Act 1964. Section 38-12 years from 1 st December 2009 to apply under old law. 6) Registration of Title Act 1964: Application to PRA pursuant to Section 49A in Form 68. If Dominant Tenement unregistered, a simultaneous application for first registration must also be made (Section 49A(2)(b) refers).
Summary: Acquisition of prescriptive easement/ profit a prendre : Court Order (duly registered) Section 35 of 2009 Act. PRA application Section 49A of 1964 Act. Section 35 of the Land and Conveyancing Law Reform Act 2009 as amended by Section 37 of the Civil Law (Miscellaneous Provisions) Act 2011 Time-limits for applying to Court or PRA: Old Law apply prior to 1st December 2021. New law apply from 1st December 2021. Section 38 of the Land and Conveyancing Law Reform Act 2009 as amended by Section 38 of the Civil Law (Miscellaneous Provisions) Act 2011
Making an application to the PRA
Is S49A application the correct route? Section 49A fills that very small gap between agreement and dispute where the servient owner is mute. Bland, P Easements (3 rd ed. Round Hall, 2015)
Documents Required Form 17 & 130 fees. Affidavit in Form 68 by Dominant Tenement owner. ITM Map showing full extent of the easement. Personal applicant ID Form required (Rule 11(4)). Dominant Tenement unregistered = First Registration application.
Affidavit in Form 68 (Paragraph 1). Affidavit by the current holder of the Legal Title. Dominant Tenement must be up to date Exception - Personal Representative (to facilitate a sale?). Property sold Purchaser must apply. Company Secretary. NO Receiver, Mortgagee in possession, Power of Attorney or Liquidator. Period of use stated: Easement 20 years. Profit 30 years.
Affidavit in Form 68 (Paragraph 2). Set out how and when was the easement acquired. The Authority will look for a degree of detail as to the history of the prescriptive user. A bald statement of user for the requisite period will not be sufficient to ground a claim.
Affidavit in Form 68 (Paragraph 2). The applicant must establish that: a. There was at all material times a capable grantor and grantee. b. The right was capable of forming the subject matter of a grant. c. The right claimed was acquired by prescription. d. The right claimed was not a public right of way, customary right, franchise or licence. e. The right claimed was not acquired by express grant or reservation nor is it an easement of necessity. f. The exercise of the right has been without force, without secrecy and without permission. g. The grant of the right would not have been illegal.
Affidavit in Form 68 (Paragraph 7). I apply that the foregoing right be- a. Registered as a burden within Section 69(1)(j) of the Act. b. Entered in the register as an appurtenance pursuant to Section 82 of the Act. Appurtenant right not applied for. Servient Tenement = leasehold interest.
Affidavit in Form 68 (First Schedule). Description of easement or profit a prendre: To contain a full and unambiguous description of the easement or profit a prendre by reference to an application map suitable marked see Rules 29 and 56. Retrospective v Prospective PRA Difficulties: ROW right to maintain. Pipeline right to maintain, replace and renew. Effluent illegality?
Affidavit in Form 68 (Second Schedule). Description of dominant land owned by the applicant: By reference to folio number if the land is registered. If part only of the folio or if an application for first registration being made by reference to property edged red on the application map.
Affidavit in Form 68 (Third Schedule). Description of servient land and name and address of the owner (if known): By reference to folio number if the land is registered. If servient land is unregistered, by reference to property edged red on the application map.
Processing Section 49A applications
Application Read Rejected Notice Served Queried No Objection Objections Query Resolved Withdraw/Refuse To Lodging Party Valid Invalid Mapping Completed
Average Processing Times 2016 2017 2018 63 weeks 74 weeks 54 weeks Main Cause of Delays Inadequately prepared applications Objections
Current rejection rate: 66% Success rate (excluding cases on hand): 56% Success rate (including cases on hand): 36% Cases on hand: 36%
Difficulties with the Application. 1. Incomplete Form 68. 2. Title to Dominant Tenement not up to date. 3. Applicant no longer holds the legal title. 4. Full extent of the easement not shown on the map. 5. Nature and extent of easement (full history) not set out in application. 6. Servient Tenement owners not provided/ not current. 7. Servient Tenement unregistered. Possible insurmountable difficulties: 8. Applicant also claiming rights to maintain/ repair/ replace easement. 9. Only means of access.
Objections PRA position: Will defeat a Section 49A application. Can still make a Section 35 application to Court. PRA may be willing to accept a reconstituted application. Solicitors for the objector: Section 72 Declaration acknowledged others had a ROW. Vexatious objection: Section 19(1) appeal may fix your client with costs. Objector may have to make a similar application.
DOMINANT TENEMENT Folio No. Registered Owner Registered Notes 10000F Mary Smith 2011 From Folio 3455 SERVIENT TENEMENTS Folio No. Registered Owner Registered Notes 3455 George White (full owner) 1984 PARENT FOLIO 1234F John Smith (Limited Owner) 1946 ROW in favour of Folio 3455 10034F Mary Smith 2000 Applicant? 15 John Rodgers Limited 1987 Dissolved per CRO 22L Simon Whelan 2012 Freehold unregistered unregistered NOT KNOWN
Folio No. Map Notes 1234F RED ROW in favour of Folio 3455 3455 BLACK PARENT FOLIO 10034F BLUE R/O Applicant
As Solicitors for a Purchaser, do I really need to force the Vendor to register his prescriptive easement, prior to closing?
QUESTIONS. THANK YOU.