Rights of ways – some confusion exists

Jun 6, 2018

There appears to be a misunderstanding amongst solicitors and the public as to the effect of amendments made by Parts 12 and 13 of the Civil Law (Miscellaneous Provisions) Act 2011 (“the 2011 Act”) to the provisions relating to acquisition of easements and profits by prescription ( that is by usage of the right over time) contained in Part 8 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). The Law Society advises by way of clarification the following:

  1. The extension of the transitional period originally prescribed by Section 38(b) of the 2009 Act (3 years) by the 2011 Act (extending the period to 12 years) relates simply to the period when a claim to a prescriptive right can be made by reliance on the “old” law replaced by the 2009 Act. From 2021, reliance must be made on the “new” law introduced by the 2009 Act, in particular reliance must be made on the new single and shorter period of 12 years user. There is no question of a cut-off point occurring in 2021 when a claim to a prescriptive right can no longer be made. All that changes in 2021 is the basis on which the prescriptive right can be claimed.
  2. The new Section 49A PRA procedure for registration of a prescriptive right introduced by Section 41 of the 2011 Act is not subject to a time-limit. It is a permanent procedure and, in particular, does not cease to be available in 2021. The only change which occurs in 2021 is the basis on which an application must be made to the PRA. As pointed out in (1) above, from 2021 the application will have to be grounded on the “new” law introduced by the 2009 Act and reliance on the “old” law repealed by that Act will cease to be possible.

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