James Browne (Wexford, Fianna Fail) | Oireachtas source

On behalf of the Minister for Justice, Deputy McEntee, who regrets that she is unable to be here in person, I am pleased lead off the debate on Second Stage. As Senators will be aware, this is an important and urgent Bill. 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 three weeks' time. Up to now, the 2009 Act has applied transitional provisions, allowing court proceedings, or applications to the Property Registration Authority, 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 new rules will take effect for all new claims from 1 December.

The 2009 Act was a major item of reforming legislation that repealed a large number of outdated laws and concepts and modernised much of our land and conveyancing law. Serious concerns have, however, been raised by stakeholders, including the Law Society and the Bar Council, about the impending changes to the law on preceptive 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, only user periods starting on or after 1 December 2021 can be counted in claiming prescriptive rights that are not registered, even if they have been enjoyed for many years before that. Third, the requirement for mandatory registration of 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.

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 lands depend on an unregistered prescriptive right. The Minister has listened carefully to these concerns and is satisfied that in these complex legal areas, the provisions of the 2009 Act are not working as intended, and that prompt action is required to avert the changes due to take effect 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 that deadline. It is essential that it can, with the support of both Houses, progress to enactment by 30 November at the latest. The Minister has 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 put on a sustainable, long-term basis.

The main changes to be made by the Bill are as follows. 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 that 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, the Bar Council, the Property Registration Authority and the Law Reform Commission.

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, that applied before the 2009 Act. 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 intended by the Minister. 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 Property Registration Authority 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 Property Registration Authority, 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 profit à prendrefollowing the coming into operation of the Bill. In cases where the prescription period was completed before 1 December 2009, the legal rules are those that applied before that date, as at section 2(a). In cases where the prescription 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 at section 2(b). There is an exception to these main rules for applications to court or the Property Registration Authority that are pending when the Bill comes into operation, and these are dealt with under section 6(2).

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

Section 4 refers to the law on extinguishment of easements or 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 in respect of registration of a prescriptive easement or profit. The amendments remove the condition that the authority must be satisfied that the claim meets the requirements set out in sections 33 to 38, inclusive, of the 2009 Act, and also clarify the conditions for registering a claim in respect of a profit à prendrein gross.

As I mentioned, section 6(1) repeals sections 33 to 39, inclusive, of the 2009 Act. Section 6(2) refers to applications to court or to the Property Registration Authority that are pending when the Bill comes into operation. It provides that they are not affected by the Bill. Essentially, such applications will, therefore, continue to be decided by the law as it stood previous to the 2009 Act.

I wish to acknowledge the engagement shown by Senator Higgins in introducing a Private Members' Bill on this issue, together with Senators Ruane, Flynn and Black. Their Bill essentially makes a single amendment to the 2009 Act, extending the 30 November deadline for a further period of five years. We also considered this approach when developing the Government Bill. However, after legal advice from the Attorney General and stakeholder engagement, the Government decided to go further and to address other aspects as well. The Minister believes the Bill before the House offers the best way of ensuring that all the necessary changes are made in this particularly complex legal area.

I believe the care and consultation that has gone into the Bill is evident. The importance and urgency of progressing the Bill for enactment before the legal cliff edge of 30 November is clear. The Minister very much hopes that, with the co-operation of all sides, we can facilitate its swift passage through this House. Time is short. I commend the Bill to the House.