Acquisition by Long Use
Long Use/Prescription.
An easement may be acquired by long use. This is analogous to the process by which title to land is acquired by adverse possession (squatting). The law on the acquisition of easements by long use (or prescription) was reformed and modernised in 2009.
The 2009 reforms require that a person who seeks to establish an easement by long use must apply to the court or to the Land Registry in order to establish a new prescriptive easement. Easements are perfected by registration of the court or Land Registry order.
The requirement for an order from the Court or Land Registry follows the earlier law on prescription to some extent, which required an order to declare entitlement to a prescriptive easement. However, the legal easement by prescription arose by operation of law and its existence was declared by the court. Under the 2009 reforms, an easement or profit à prendre shall be acquired at law by prescription only on registration of a court order under the relevant provisions. It may exist as an inchoate right pending such declaration, provided the relevant conditions continue to be satisfied.
The entitlement to an easement will often arise as a claim or a defence in legal proceedings. This may arise where a person seeks to restrain an alleged trespass. The party exercising the alleged easement may claim that a valid easement exists so that there is no trespass, nuisance or other actionable wrongs. A claimant may assert the easement and seek to establish it in order to clarify his entitlement.
In most cases, the prescriptive easement is known and accepted by all relevant parties. No legal action is necessary, as the facts and circumstances are such that the easement’s existence appears to be clearly established. Provided that it is evident from inspection, it should bind third-party purchasers of the land. It is protected without registration in the Land Registry. However, if it is disputed, it may be claimed in the legal proceedings.
As of Right
In order to acquire an easement, the required use of the land affected, must not take place with consent. The person claiming the easement must have used the land, it as if he was entitled to do so. Use by consent or under a lease by the landowner is inconsistent with an easement. This is logical as the person is using the easement with such consent and is not be entitled to expand the scope of the consent, such as by converting it into a permanent easement.
The position is analogous to but different to that applicable to adverse possession. In adverse possession, the initial taking may be unlawful. In contrast, in the case of prescription, the alleged easements rights must be used “as of right” as if the owner had granted a permanent right.
The easement must be acquired without force. If the owner of the land has continuously and specifically objected, the requirement is not satisfied. The owner must, in effect, acquiesce in the use of the land by way of the putative easement. The use must not be secret. It must be open. A person may not acquire an easement by secret or surreptitious use of the land.
The use must be continuous during the required period. This does not require that the user should be constant. However, it must not be intermittent. Continuous use must be more than occasional or intermittent. Occasional use may be by way of implied consent. This would be inconsistent with the right being claimed to be exercised as of right.
The rules for acquiring easements in claims prior to 2012 were very anomalous and arbitrary. The older rules will continue to be relevant for some time.
Common Law
At common law, an easement could be asserted if it had been used since time immemorial. This was defined as the year 1189, by statute. It was necessary, at least notionally to show under this principle that the easement had been used continuously since this time.
The position was not as onerous as first appears, as the easement was presumed to be used since time immemorial, on proof of 20 years’ use. However, this claim could be rebutted by showing that the easement could not have been used continuously since 1189.
In many cases, it was and is possible to prove that an easement could not have existed for 800 years. For example, a building, subject to a claim to a right to light, could easily be shown to less than this age. Similarly, landholdings paths could be shown by reference to maps, to have a more modern origin.
Because prescription at common law was easily rebutted, another legal fiction was created; that of a “lost modern grant”. 20 years’ use was presumed to be sufficient to show that the easement was based on a grant which had been made since 1189, but which had been since lost. The presumption could be rebutted by proof that the grant could not have been made or was not in fact made.
Prescription Act
Ultimately in 1858, the prescription legislation introduced in England and Wales in 1832 was extended to Ireland. This sets out a more satisfactory, but highly technical and anomalous method of establishing an easement. The general principles applicable to easements by prescription must be satisfied. The right must be capable of being an easement, must be open, continuous, not by permission etc.
The prescription legislation provided for differing rules for easements of light, profits a prendre and other easements. It also provided for two classes of easement, one involving the acquisition by a shorter 20-year period of use and another involving a longer 40-year period of use.
Period
In the case of most easements, the shorter period is 20-years. In the case of profits, it is 30 years. Use for the shorter period cannot not be defeated by showing that use began after 1189 and before the start of the relevant 20-year period. However, a claim can be defeated by proving an interruption for a period of a year as set out below.
If the use has been for 40-years (in the case of a profit, 60 years), them where the requisite continuity of use has been proved, the easement is deemed absolute and indefeasible. Unlike the case of use for the 20 year/30 year period, it cannot be defeated by being enjoyed by verbal consent. It could be defeated by showing that it was enjoyed with the written consent. Certain deductions from the period might apply.
In both cases, the relevant use must continue up to the commencement of the legal action taken to assert the easement claim. An interruption is not deemed to be legally effective for the purpose of deduction, unless it has been submitted to or acquiesced in, for one year after the interruption, and he has had notice thereof and of the person making or authorising the interruption.
1832 Act Interruptions and Deductions
An interruption involves an actual cessation of the use. This may, for example, include the placing of a barrier across a roadway. An interruption is stopped, provided the party claiming the easement objects to and does not acquiesce in it.
The Prescription Acts provided for deductions from the period of enjoyment. Periods when the owner of the land affected was a minor, mentally ill or tenant for life, were to be deducted in the calculation of the shorter (20/30 year) period. Any period during which an action is being diligently prosecuted until abated by death is also excluded.
This last mentioned provision does not apply where the land affected is held under a lease. In the case of easements other than light and profits, there is a deduction from the longer period while the land affected is held by a tenant for life or any lease for a term of more than three years, provided that the claim was resisted by the landlord within three years of the expiry of the term.
In the case of easements of light, easement rights actually enjoyed for a 20-year period without interruption, are deemed absolute and indefeasible, unless it was shown to be enjoyed by consent or agreement made in writing. A verbal consent did not defeat the claim. There are no deductions on the basis mentioned above.
2009 Act Requirements
The 2009 Act has entirely replaced the above rules for actions taken after December 2012. On one interpretation, the older rules continued to apply for 12 years after the creation commencement of the 2009 land law reforms. The position was clarified by legislation passed in 2013.
A minimum of 12 years’ continuous use only, is required under the new legislation. Where the land affected is owned by a state authority, this period is increased to 30 years. A 60-year period applies where the land is foreshore/beach.
The enjoyment must be as of right. This is defined as use or enjoyment without force, secrecy and without oral or written consent. Accordingly, the general principles set out above, continue to apply. The rules apply equally to all categories of easements.
2009 Act Interruption / Deductions
There are new provisions in respect of interruption and deduction. The relevant period means the period of use without interruption, by the claimant in the litigation or application. Interruption means interference with or, cessation of the use or enjoyment of an easement or profit for a continuous period of at least one year.
Interruption must be actual interference. It is no longer necessary that the claimant has submitted to, or acquiesced in it. There is no requirement that the party concerned has notice of the interruption and of the identity of the person making it. The interruption must be continuous for at least a year.
Deductions are permissible where the owner of the land concerned is incapable, whether at the commencement or during the relevant period, of managing his affairs due to mental capacity. In this case, the suspension lasts until the incapacity ceases.
This deduction does not apply if at least 30 years have elapsed since the commencement of the use or the court considers it reasonable in the circumstances of the case to have expected some other person whether as committee of a ward, trustee, attorney under an enduring power, to have taken action on behalf of the owner.
If the land benefited is held under a tenancy, the easement or profit attached to the land and passes to the landlord after the tenancy. If the land affected is held under a tenancy or lease, the easement or profit ends once the tenancy ends, but will attach to any renewal or extension of the tenancy or to any superior interest acquired by the owner of the land affected.
Where the tenancy ends against when the easement of profit has been acquired, the relevant right may be acquired again against landlord but only after a new period of 12 years of use has elapsed against the landlord in possession.
2009 Act Applications
An easement or profit may be established only by an action or an application to the Land Registry. The court is to make an order declaring the existence of the easement if it is satisfied that there has been the relevant use during the period before the commencement of the action.
The court / and Registry may make an order even if the relevant use was not immediately before the action if it is satisfied it is just and equitable in the circumstances. Once a court order is obtained, it is necessary to register it in the Land Registry or Registry of Deeds (as appropriate) in order to perfect and establish the right as a legal easement.
A person claiming an easement or profit must either apply to a court for an order confirming the entitlement or must apply for registration to the Property Registration Authority. Where the PRAI is satisfied that the entitlement exists, may cause it to be registered as a burden on the folio. This is broadly similar to the section provision allowing for registration of squatters rights in the Land Registry in relatively clear and uncontested cases.
There is a 12-year transitional period from the 1st December 2009 to 30th November 2021 under the legislation. The old methods are abolished as methods of acquiring easements after 1st December 2009. It was possible to take action within three years of that date to establish an easement based on these older principles. The transitional period was extended from three years to 12 years in 2013.
The 12-year period applies to claims, periods commencing after the 2009 Act. After 2nd December 2021, an easement may only be acquired on the basis of the new rules.
Easements and profits other than those created by express grant or reservation after first registration affect registered land without registration. A court order or application under the Registration of Title Act to establish an easement by prescription is a registrable burden. Accordingly, it must be registered in order to bind registered title land.