Easements & Squatting

The older methods requiring easements by prescription were proposed to be abolished. In the future, prescription must be based on the below-mentioned ground. Easements from the course of acquisition are preserved.

Any easement is acquired automatically by the holder of the land benefit after 20 years in continuous enjoyment. The period need not necessarily be the last 20 years. There is no requirement to register an easement to acquire title. This will continue to be a burden affecting registered land without registration.

Easements during the relevant period must be as of right. That is, it must be without force, secrecy, and other than by consent. This applies to the general principles in the Republic of Ireland and England and Wales.

In order for an interruption of continuous enjoyment to be effective, it must be for a minimum of 12 continuous months. In the case of enjoyment by consent, it must be consent for a minimum period of 12 months.

The character and extent of the easement acquired will reflect the use. An intensification of use must itself be acquired for the prescriptive period of 20 years.

A new legislation will confirm that easements can be acquired between landlords and tenants. This accords with the law in the Irish court but not the English court. As far as the easement is acquired by the tenant, it vests in the landlord, but it is enjoyed by the tenant so long as the lease continues.

Where a prescriptive easement was completed while the land affected was occupied by a tenant, it does not bind the landlord but only the tenant in occupation. It will continue to bind the affected land while the tenancy is in place.

The general principle is that a period of acquisition of an easement will not run while the person suffers from a mental disorder.

Where an easement is in the course of acquisition, a person may interrupt it without having to physically stop enjoyment or commence proceedings. He may serve, register an interruption notice in the statutory charges register. The owner benefit is to be given warning of the impending application for registration. He may make representation. Upon registration, interruption is deemed to take place. An aggrieved person may apply to court.

It is presumed that after 20 years of abandonment, an easement is lost. An intention to abandon must be shown.

There is a new statute providing where the holder of land subdivides or disposes of parts, facilities actually enjoyed and those reasonably to be implied in favor of the buyer or acquirer are to be implied. Those in the reasonable contemplation as having to be intended to be available are to be included.

Easements must be capable of being the subject matter of a grant and be conducive to the reasonable enjoyment of the land concerned.

Where a person doing repairs to an installation, he is entitled to recover cost and expenses from all those who enjoyed the benefit of that installation. The necessary ancillary rights to render an easement effective are also implied. The provisions regarding implied easements yield to the express wording of – or express provision is made.

The existing principle of acquiring an easement by implication under necessity or based on common intention may still apply.

The Reform Legislation updates the law on squatting or adverse possession. The existing principles of adverse possession and acquiring title by squatting apply.

In the case of land registry title, an application must be made to the land registry for registration in place of the displaced owner.

In the case of registry of deeds title, a voluntary first application for registration to the registry of deeds, land registry may be made. The land registry may then register the owner with squat or possessory title.

Where a tenant’s right to land has been acquired by a third party dispossessing him only the tenant’s interest is dispossessed. The landlord’s title exists and he may enforce to recover the land upon termination of the lease.

There is provision whereby a squatter may ascertain the terms of the lease so that he can ensure compliance with it.

Once the requisite period for adverse possession has been achieved, it is effectively an assignment of the existing lessee’s tenancy notwithstanding application or consent that the landlord has not undertaken.

Although the landlord has to accept the new tenant, he may be able to show that there is a breach of a term of tenancy in which event there may be compensation or a claim against the squatter.

Certain disputes maybe dealt with by the lands tribunal quickly in relation to apportionment.