Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

As Deputies will be aware, this is an important and urgent Bill. It will avert a legal cliff edge that is due to occur later this month by repealing a number of legal changes due to come into effect on that date. Those impending changes are causing serious concern for stakeholders, particularly given their implications for conveyancing practice generally and in particular for private right of way and other prescriptive easements that are essential for many farmers and rural and urban homes. I am sure Deputies will have been contacted in recent weeks regarding issues and concerns, so it is important that the Bill be passed in time.

Under Part 8 of the Land and Conveyancing Law Reform Act 2009, significant changes to the law on prescriptive easements and profits à prendreare due to take effect immediately after 30 November 2021, in just under two weeks. Up to now, the 2009 Act has applied transitional provisions, allowing court proceedings, or applications to the Property Registration Authority, PRA, seeking to validate or register a prescriptive right to be decided under the old legal rules that applied before the 2009 Act. That transitional phase will end, however, on 30 November next and, under the 2009 Act, new rules will take effect for all new claims from 1 December.

The 2009 Act was major reforming legislation that repealed a large number of outdated laws and concepts and modernised much of our land and conveyancing laws. Serious concerns, however, have been raised by stakeholders, including the Law Society and the Bar Council, about the impending changes to the law on prescriptive easements and profits under the 2009 Act. In particular, the new legal rules on acquiring prescriptive easements or profits are causing legal uncertainty. Second, the generally accepted view is that after 30 November 2021, under the 2009 Act, only user periods starting on or after 1 December 2021 can be counted as claiming prescriptive rights that are not registered, even if they have been enjoyed for many years before that. Third, the Act's requirement for registration for prescriptive easements or profits à prendreis not operating satisfactorily in practice. It has not yet been possible to register many important prescriptive rights that appear to have been enjoyed for many years without dispute. Of all the applications to date, more than 70% have been rejected and, therefore, there are issues in that regard.

Stakeholders indicate these changes risk causing unnecessary court cases to protect rights that have been enjoyed for generations without dispute, resulting in stress and legal costs between neighbours. The new registration requirement is causing widespread blockages and delays to conveyancing and problems for mortgage or farm loan approvals where a house or a land depends on an unregistered prescriptive right, an issue that arose with someone I was dealing with earlier this week. I have listened carefully to these concerns and I am satisfied that in this complex legal area, the provisions of the 2009 Act are not working as intended and prompt action in the shape of the Bill is required to avert the changes due to take place on 30 November.

The Bill will address the most pressing need by repealing the major changes due to take effect on 30 November, thus removing the deadline. To succeed in this task, it is essential the Bill can, with the support of both Houses, progress to enactment by 30 November at the latest. I have secured Government agreement to establish a time-bound review, in agreement with the Attorney General, that will identify any further changes that are desirable to the law on prescriptive easements and profits to ensure this area of law will be placed on a sustainable, long-term basis. While we are reverting to the pre-2009 law, I hope a review, which will be up and running in the early new year, will have concluded by the summer in order that we can put forward a proposal to deal with this on a longer-term footing, given that I do not believe the pre-2009 law is the way in which we need to proceed.

I am conscious the law on prescriptive easements and profits à prendreremains an ancient, technical and complex corner of our property law, dating back to 1832. Despite the arcane terminology, however, these are issues that have direct, real and practical consequences for farmers and homeowners. Common examples of prescriptive easements include a right of way to access one's home, field or a laneway that runs through a neighbour's land, the right to use water or sewerage pipes running under a neighbour's land, or the right of support between adjoining buildings in different ownership. These are just a few examples and I am sure many more could be mentioned.

I will turn to the main changes to be made by the Bill. Section 6 will repeal sections 33 to 39, inclusive, of the 2009 Act. Consistent with the strong preference of stakeholders, this will repeal the major changes to the law on prescriptive easements and profits à prendrethat were due to take effect after 30 November, thereby removing the imminent deadline. The Bill sets out a number of new rules for the law on acquiring and validating prescriptive easements and profits à prendre. This follows extensive engagement with stakeholders, including the Law Society, Bar Council, PRA and Law Reform Commission, LRC.

In general, claims made after the Bill comes into operation will be decided under the judge-made law known as the doctrine of lost modern grant. While we are reverting the law to pre-2009, we are identifying one of the three areas to work under the common law doctrine of lost modern grant. This reflects the strong preference of stakeholders, which see this as the most satisfactory and familiar set of rules available, pending the more comprehensive review. Under the Bill, periods of long use that were acquired before or during the years 2009 to 2021, inclusive, will not be lost on 30 November where the prescriptive right is unregistered, as under the 2009 Act, but can still be counted in a claim made after that date. Applications based on periods of use completed before 1 December 2009, the date on which the 2009 Act came into operation, will continue to be decided in accordance with the law that applied before that date. The same is true of applications to court or to the PRA to validate or register a prescriptive right that are pending when the Bill comes into operation.

Special arrangements are proposed in respect of State-owned land, including foreshore. Under section 3, as under the 2009 Act, acquiring a prescriptive right against State-owned land after 30 November 2021 will require longer periods of use than are required in a claim against land owned by a private person. Otherwise, the general rules I outlined will apply and, under the Bill, long use before 30 November 2021 will still be counted, unlike under the 2009 Act. It will still be possible to validate a prescriptive right, either by applying to court or by registering it directly with the PRA, but this will be optional, as it was before the 2009 Act, rather than becoming a requirement to avoid losing any rights acquired through long use.

I will now address the main provisions of the Bill. Section 2 sets out the main rules that are to apply to a claim to have acquired a prescriptive easement or profits à prendrefollowing the coming into operation of the Bill.

In a case where the prescriptive period was completed before 1 December 2009, the legal rules are those that applied before December 2009, as set out in section 2(a) of the Bill. In a case where the prescriptive period was completed after 1 December 2009, the legal rules are the pre-2009 Act judge-made rules known as the doctrine of lost modern grant, as set out in section 2(b) of the Bill. There is an exemption to these main rules for applications to the court or to the Property Registration Authority, PRA, pending when the Bill comes into operation. These are dealt with under section 6(2) of the Bill.

Section 3, as already mentioned, deals with claims to have acquired a prescriptive easement or profit à prendreover State-owned lands or foreshore, other than pending applications or claims, for the prescription period completed before 1 December 2009. The longer prescription periods, 30 years for State-owned land that is not foreshore and 60 years for foreshore, were recommended by the Law Reform Commission, LRC, in 2002. They reflect that fact that it is more onerous for the State than for a private owner to be aware of any easements orprofits à prendrebeing exercised against its lands, especially regarding foreshore that is submerged for much of the time.

Section 4 refers to the land and the extinguishment of easements and profits à prendre. The Bill repeals the new rules due to come into effect under the 2009 Act and this section just clarifies that the pre-2009 common law rules on extinguishment will continue to apply.

Section 5 amends section 49A of the Registration of Title Act 1964 regarding the registration of a prescriptive easement or profit à prendre. The amendments remove the condition that the PRA must be satisfied that the claim meets the requirements set out in sections 33 to 38, inclusive, of the Act of 2009 and also clarifies the conditions for registering a claim regarding a profit à prendrein gross.

Section 6(1), as mentioned, repeals sections 33 to 39, inclusive, of the Act of 2009, while section 6(2) refers to applications either to a court or to the PRA that are pending when the Bill comes into operation. It provides that they are not affected by the Bill and, essentially, such applications will continue to be decided under the law stemming from the existing Act of 2009.

The care and consultation that has gone into this Bill is evident. I thank my officials for their work and for their engagement with members of the Houses and with the stakeholders. The importance and urgency of progressing this Bill for enactment before the legal cliff edge of 30 November is clear. I hope that with the co-operation of all sides of the House we can facilitate its swift passing. I am not saying that what we are going back to is the final product, but we must make progress and I reiterate that I am committed to that review which will commence in the new year. I hope it will be completed by the summer of next year and that it will give us an indication as to how we can try to deal with this issue once again.

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