Law Enacted To Remove Problems Affecting Rights Of Way

Minister for Justice Helen McEntee has welcomed the passage and enactment of the Land and Conveyancing Law Reform Act 2021, which removes immediate problems around rights of way.

The bill completed its passage through both Houses of the Oireachtas on Wednesday, November 24, and was signed into law by President Michael D. Higgins on Friday, November 26.

The act comes into operation  Tuesday, November 30, 2021

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, December 1.  

Legal Cliff-Edge

The minister said that the “timely enactment of this urgent act” averts a “legal cliff-edge” that was due to occur on December 1, 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,” Minister McEntee said.

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

“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,” the minister said.

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 December 1.

Major Rights Of Way Changes

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“The Land and Conveyancing Law Reform Act 2009 was a major piece of reforming legislation, which repealed a large number of outdated laws and concepts, and modernised much of our land and conveyancing law.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

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

  • Claims to validate or register a prescriptive right that are already pending on November 30 (before the courts, or the Property Registration Authority) will continue to be decided as they were before November 30 (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 November 30 if no claim has been made, but can still be counted in a claim made after that date (the clock is not reset);
  • New claims (brought after November 30) 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;
  • 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 said that while the act addresses the “most pressing need” by repealing the major changes due to take effect this week and removing the deadline, a “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,” she added.

“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.”

(Source – Agriland – Kathleen O sullivan – 30/11/2021)

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