Minister for Justice Heather Humphreys has secured cabinet approval to enact a bill that will remove the upcoming right of way registration deadline.

The bill will amend the provisions in the Land and Conveyancing Law Reform Act 2009.

The amendments are regarding easements, such as rights of way, held by a property owner over a neighbour’s land, and ‘profits à prendre’.

Profits à prendre are other rights over another person’s land, such as fishing or shooting rights, that have been acquired by ‘prescription’, which is by long use as of right, where there is no written deed formally granting the right, or the written deed has been lost. 

Prior to the introduction of the 2009 act, prescriptive rights of way were usually verified by simple statutory declarations of long use. 

The 2009 act introduced a new requirement for a prescriptive right to be verified by a court order, and registered with the Property Registration Authority (PRA). 

An amendment to the law made in 2011 provided that, if the prescriptive right was not contested by the owner of the land affected by it, the claimant could apply directly to the PRA to validate and register their right based on long use. 

The deadline for applications under the old rules made to court, or directly to the PRA, was also extended to November 30, 2021.

After that deadline, prescriptive rights could still be validated and registered, but only under new rules taking effect on December 1.

Legal uncertainty

Speaking after cabinet today (Tuesday, September 21), Minister Humphreys said:

“I know that the position that was due to apply after November 30, has been a cause of great concern for many.

“I have listened carefully to the concerns raised with me by stakeholders, including the Law Society and the Bar Council.

“I am satisfied that, if not addressed, this deadline was likely to lead to a large volume of unnecessary court cases to protect rights which have been enjoyed for generations, and to cause stress between neighbours, unnecessary legal costs, and added court backlogs.

“That is why I am acting quickly to clarify the legal uncertainty that has arisen and to put in place an appropriate solution.”

The amending bill is short, to be enacted before the November deadline, and will address “the main problems arising in the short-term”.

“We will remove the major changes to the law on prescriptive easements and profits that were due to take effect on December 1, thereby removing the imminent deadline,” the minister said.

“In what I am sure will be a welcome development for purchasers, this is also expected to greatly reduce current conveyancing delays and blockages.”

‘Wholesale reform’ of right of way-related law to come

To ensure that the legislation can be enacted in good time before the deadline on November 30, the minister intends to seek a waiver from pre-legislative scrutiny, and to seek early signature of the bill by President Michael D. Higgins.

The minister added that it is “clear that more wholesale reform is needed”. She said she intends to “establish a time-bound review that will identify the best long-term, sustainable provisions for the law in this area”.

The law applicable to prescriptive easements and profits will largely be reverted to the judge-made law that applied before the 2009 act, the Department of Justice has confirmed.

It will still be possible to confirm a prescriptive right, either by applying to court or by registering it directly with the PRA. 

But, this will be an optional (as it was before the 2009 act) rather than a mandatory requirement, to avoid losing any rights acquired through long use.

Provision will also be made to ensure clarity on the situation of applications already made to court or to the PRA that have been lodged, but not decided, before these changes come into effect.