Tuesday, 25 May 2021
Department of Housing, Planning, and Local Government
280. To ask the Minister for Housing, Planning, and Local Government if right of way legislation due to come into place on 30 November 2021 will be delayed due to extended closures of the Land Registry and solicitors’ offices due to Covid-19; and if he will make a statement on the matter. [27900/21]
There appears to be a misapprehension regarding the dates for registering rights of ways acquired by prescription on foot of amendments made by Parts 12 and 13 of the Civil Law (Miscellaneous Provisions) Act 2011 to the provisions relating to acquisition of easements and profits by prescription contained in Part 8 of the Land and Conveyancing Law Reform Act 2009.
I understand from the Property Registration Authority (PRA) that the following is the position:
1. The extension of the transitional period originally prescribed by Section 38(b) of the 2009 Act (3 years) by the aforementioned 2011 Act (extending the period to 12 years) relates simply to the period when a claim to a prescriptive right can be made by reliance on the 'old' law replaced by the 2009 Act. From 2021, reliance must be made on the 'new' law introduced by the 2009 Act; in particular, reliance must be made on the new single and shorter period of 12 years. There is no question of a cut-off point occurring in 2021 when a claim to a prescriptive right can no longer be made. All that changes in 2021 is the basis on which the prescriptive right can be claimed.
2. The new procedure for registration of a prescriptive right introduced by Section 41 of the 2011 Act is not subject to a time limit. It is a permanent procedure and, in particular, does not cease to be available in 2021. The only change which occurs in 2021 is the basis on which an application must be made to the PRA. As pointed out in (1) above, from 2021, the application will have to be grounded on the 'new' law introduced by the 2009 Act and reliance on the 'old' law repealed by that Act will cease to be possible.
This procedure is only for easements (including rights of way) acquired by prescription. If all parties agree to the registration of an easement, an application should be made by lodging the appropriate Deed of Grant.
Finally, a Practice Direction Easements and Profits à Prendre Acquired by Prescription under Section 49 A and an informational video are available on the PRA’s website (www.prai.ie) that cover the process relating to the registration of prescriptive easements.