Ministers McEntee and Browne welcome enactment of law to remove problems affecting rights of way

 

 

30 November 2021

 

The Minister for Justice, Helen McEntee TD, has today welcomed the passage and enactment of the Land and Conveyancing Law Reform Act 2021. The Bill completed its passage through both Houses of the Oireachtas on Wednesday 24th November, and was signed into law by the President on Friday 26th November. The Act comes into operation today, Tuesday 30th November.

 

It repeals a number of changes to the law on prescriptive easements and profits à prendre, under the Land and Conveyancing Law Reform Act 2009, which were due to take effect on Wednesday 1st December.  

 

The Minister said,

 

“I’m delighted to welcome the timely enactment of this urgent Act. It averts a legal cliff-edge that was due to occur on 1st December, when major changes to the law on private rights of way, and other prescriptive rights, were due to come into effect.

 

“I know that those impending changes have been causing worry and stress to many people, with farmers and homeowners at risk of losing important rights that have been enjoyed for many years without dispute. This Act repeals those changes, and protects acquired rights and acquired years of use. ‘’ 

 

Common examples of prescriptive easements include:

 

- a right to use water or sewerage pipes, running under a neighbour’s land,

- a right of support between adjoining buildings that have different owners, or

- a private right of way to access your home, or field, over a laneway that runs across your neighbour’s land. 

 

The Minister continued,

 

“Legal terms such as ‘prescriptive easements’ or ‘profits à prendre’ can sound very remote and arcane, but in practice, these are issues that have very direct and practical consequences for many people.”

 

Serious concerns had been raised by stakeholders, including the Law Society and the Bar Council, about the changes that were due to take effect on 1 December 2021.

 

Minister of State James Browne, who steered the legislation through the Seanad, added,

 

“The Land and Conveyancing Law Reform Act 2009 was a major piece of reforming legislation, which repealed a large number of outdated laws and concepts, and modernised much of our land and conveyancing law.

 

“However, after carefully considering the concerns raised by stakeholders about this particular chapter of the 2009 Act, it was clear that in this particularly complex legal area, the 2009 provisions were not working as intended.

 

“I am grateful to the Law Society and the Bar Council, in particular, for their work to highlight these difficulties. I would also like to thank all the stakeholders who worked with my Department to develop the provisions of the Bill, and the Attorney General for the valuable legal advice and drafting expertise provided.’

 

As well as repealing the major changes due to take effect on 1 December 2021, under the 2009 Act, the Land and Conveyancing Law Reform Act 2021 provides that:

 

 

 

 

 

Minister McEntee concluded,

 

“The Act addresses the most pressing need, by repealing the major changes due to take effect on 30 November, and thus removing the deadline.

 

“However, more comprehensive reform may be required. The Government has agreed to establish a time-bound review to identify any further changes that are desirable to ensure that this area of law is placed on a sustainable long-term basis.

 

“I hope that the review could start work early in the New Year, with a view to completing its work by the end of the summer.”

 

ENDS../

 

Notes to Editors:

 

The Land and Conveyancing Law Reform Act 2021, as enacted, is expected to be published shortly on the Oireachtas website. Meanwhile, further information is available at the following links: 

https://www.oireachtas.ie/en/bills/bill/2021/140/?tab=bill-text , and https://president.ie/en/the-president/2021-legislation

 

The Government approved drafting and publication of the Land and Conveyancing Law Reform Bill on 21 September 2021. The Bill follows extensive engagement by the Department of Justice with stakeholders including the Law Society, the Bar Council, the Property Registration Authority of Ireland and the Law Reform Commission.

 

Section 7 of the Act provides that it will come into operation on 30 November 2021. The Act refers to prescriptive easements and profits à prendre (these terms are explained below). It does not affect public rights of way, or rights that are set out in written title deeds.

 

Easements are certain private rights held by a property owner over the property of a neighbour. Common examples include:

 

 

Profits à prendre are less common, and are private rights held by a person (not necessarily a property owner) over another person’s land (not necessarily a neighbour) that involve taking a natural product of the land (such as fishing or shooting rights, or certain traditional seaweed gathering rights).

 

‘Prescriptive’ easements (or profits à prendre) are ones that have been acquired by prescription (that is, by long use as of right, where there is no written deed formally granting the right, or the written deed has been lost).  Various legal conditions apply – in particular, the claimant must prove a minimum number of years of continuous use, as of right, in order to establish that s/he has acquired a prescriptive easement or profit à prendre. Twenty years was the usual period of use before the 2009 Act.

 

Under Part 8, chapter 1 of the Land and Conveyancing Law Reform Act 2009, as amended by the Civil Law (Miscellaneous Provisions) Act 2011, significant changes to the law on prescriptive easements and profits à prendre were due to take effect on 1 December 2021. However, serious concerns had arisen about these changes: 

 

 

The main changes made by the 2021 Act are as follows: