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Undocumented Rights of Way update

3rd December, 2021

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

  • Land and Conveyancing Law Reform Act 2021 comes into effect today
  • Averts ‘legal cliff-edge’ due to take effect immediately after 30 November
  • Reforms law on prescriptive easements and profits à prendre

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“The Land and Conveyancing Law Reform Act 2009 was a major piece of reforming legislation, which repealed a large number of outdated laws and concepts, and modernised much of our land and conveyancing law.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

  • claims to validate or register a prescriptive right that are already pending on 30 November (before the courts, or the Property Registration Authority) will continue to be decided as they were before 30 November (as transitional cases, they were decided under the law that applied before the 2009 Act); 
  • periods of long use that were acquired before or during the years 2009 – 2021 will not be lost on 30 November if no claim has been made, but can still be counted in a claim made after that date (the clock is not re-set);
  • new claims (brought after 30 November 2021) will largely be decided under the judge-made law (the ‘doctrine of lost modern grant’) that applied before the 2009 Act. This reflects the strong preference expressed by stakeholders, who see these as the most satisfactory and familiar set of rules available, pending more detailed review;  and
  • it will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority. But this will be optional, (as it was before the 2009 Act), rather than a mandatory requirement to avoid losing any rights acquired through long use.

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.”