Michael McDowell (Dublin South East, Progressive Democrats)

I can reassure the House that when using Norman French legal terms one can pronounce them as if they were bog standard English words. Everybody can pronounce them in any way he or she wishes and knowing the French pronunciation is not necessary.

I do not propose to accept the amendment tabled by Senator Cummins. Introducing the words suggested, "or otherwise", without any definition of what that means would render the section vague and uncertain. The provisions in section 33, which replace the provisions in the Prescription Acts, are based on detailed Law Reform Commission recommendations in 2002 set out in its report on the acquisition of easements and profits À prendre by prescription.

Before a right over the land of another person is considered an easement there must be a dominant and servient tenement. In other words, a right is an easement only if there is a property in whose favour the right is created and a property subject to it. The servient tenement is the land over which the easement is exercisable while the dominant tenement is the land, owned and occupied by another person, that benefits from the easement to which it is attached. When the land is transferred, the easement is included in the transfer to the new owner. Examples of easements include drainage pipes and overhead cables, rights of support and rights of access to the dominant land. A right of way must be in favour of land in order to be an easement. If, for example, someone includes in a land document the right for me to walk up and down the garden, this is a licence rather than an easement because it is not in favour of some other land. The most usual and straightforward way of creating an easement is an express grant. That happens when a grantor sells land and gives the grantee an easement over that land, such as a right of way.

On the other hand, an easement can be reserved for a person who sells land but retains an easement for the benefit of the land retained, such as a shortcut across a field. In such circumstances, an implied easement may arise in the case of access to a landlocked parcel of land or mutual support between two houses. If one sells land and retains a landlocked portion in the middle the courts will infer an easement of access to the land and a right of way to it on the basis that no one should make one's land inaccessible. Likewise, if two houses are in a terrace, even if there is no express grant of a right of support easement, the courts will infer such an easement. If one buys a house in a terrace, it is assumed that one of the property owners is not in a position to tear down his house and cause the other house to collapse.

Easements can be also acquired by prescription under the old statutes, the Prescription Acts, to which I have referred. Where previous owners have, over a long period, continuously acted as if they were entitled to the easement, the court may recognise that a person has acquired an easement over the servient land by prescription. Section 33 clarifies and simplifies the existing law by providing that legal title to an easement or profit by prescription may be obtained by a claimant only on the basis of a court order that is registered in the Land Registry or the Registry of Deeds. Section 69 of the Registration of Title Act provides for the registration of easements and profits created by express grant or reservation after first reservation or by court order.

The words "or otherwise" that Senator Cummins proposes to add do not make the meaning clear. I am unhappy that some meaning would be attached to them but I will consider the amendment before Report Stage to see if there is any merit in introducing it.