Cosgrove Gaynard Solicitors

Registration of Rights of Way – Easements

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An easement is a right which an owner or an occupier of land has, by virtue of his ownership of his land, over the land of a neighbour, e.g. right of way, light, support and water.

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It was recently published that an expiry date for registration of rights of way acquired under the old laws of prescription was the 30th November 2012.

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While this was the date initially provided for in the Land and Conveyancing Law Reform Act of 2009, this was subsequently amended by The Civil Law (Miscellaneous Provisions) Act 2011 which extended this date to 30th November 2021.

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An easement is different to a profit à prendre which can be held independently of any land owned by the holder of the profit. A profit is a right to go on another person’s land and take natural material from it, e.g. to cut timber or turf, graze animals, fish or hunt.

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To constitute an easement a right must satisfy four requirements:

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1.There must be a dominant and servient tenement.A dominant tenement is the land benefited by the easement and the servient tenement is that over which the easement exists. An easement unlike a profit à prendre cannot exist independently. The two properties must be linked although not necessarily adjacent once there is sufficient proximity between them.

2.The right over the servient tenement is for the accommodation of the dominant tenement, i.e. it must benefit the land itself, and not merely the owner in a personal capacity. If the benefit has no normal connection with the ordinary use of the land it cannot be said to accommodate it.

3.The ownership or occupation of both lands generally speaking, must be in the hands of different persons.

4.Such rights must be capable of forming the subject matter of a grant (e.g. there can be no prescriptive claim to a right of privacy or a grant contrary to public policy).This is expressed in the general rule that all easements lie in grant i.e. it cannot be vague or uncertain and must not amount to ownership or possession of the land or merely be a right of recreation without utility of benefit.

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Prescription is the acquisition of such rights by long user over a substantial period of time. Traditionally three methods of prescription were used i.e. (1) at common law, (2) under the doctrine of lost modern grant and (3) under the Prescription Act, 1932. Generally speaking, no matter which method is claimed as the basis for establishing acquisition of rights, a claimant must show user as of right i.e. that he/she has enjoyed the right and the servient owner acquiesced in that user or enjoyment. The use and enjoyment must be for a continuous period which has been interpreted as regular user as opposed to intermittent user.