Easements in Irish Land Law

What an easement is: dominant and servient tenements

An easement is a right enjoyed by the owner of one piece of land — the dominant tenement — over another piece of land — the servient tenement, which is burdened by the right. Easements are recognised at common law and are within the list of legal interests under the LCLRA 2009.

In Connolly v South of Ireland Asphalt Binding (IE), O'Higgins CJ adopted the essential definition of an easement as a right over the servient tenement enforceable by the dominant owner — the Irish authority for the concept. Common recognised easements include rights of way, of light and of support.

The four characteristics of an easement

Whether an alleged right qualifies as an easement is tested against the four characteristics laid down in Re Ellenborough Park Persuasive (Eng):

• there must be a dominant and a servient tenement;
• the right must accommodate (benefit) the dominant tenement;
• the dominant and servient tenements must be in different ownership or occupation; and
• the right must be capable of forming the subject-matter of a grant.

Two recurring battlegrounds arise. First, does the right accommodate the land itself, not merely the owner personally? In Hill v Tupper Persuasive (Eng) a sole right to put pleasure boats on a canal was a personal commercial advantage and no easement, whereas in Moody v Steggles Persuasive (Eng) a right to hang a sign for a public house did accommodate the dominant land, being connected with its normal use as a pub. Second, the right must not amount to exclusive possession: in Copeland v Greenhalf Persuasive (Eng) a claimed right to store vehicles on a strip amounted to a claim to possession and could not exist as an easement.

Scope of the common easements

Each recognised easement has a defined scope, and disputes usually concern its extent and what the servient owner may do. The servient owner must not render the right unusable but retains rights consistent with the easement. In Flynn v Harte the servient owner could place gates on a right of way provided the dominant owner was not thereby deprived of the use of the way, while in Griffin v Keane the servient owner must not alter the land so as to render the way unusable, and in Geoghegan v Henry the dominant owner could be required to close and secure gates. For support, Munnelly v Calcon Ltd is the leading Irish authority. Excessive use, or a change in the character of the dominant tenement, may take the user outside the easement.

Acquisition I — express and implied grant

An express easement is created by deed, by grant or reservation. Implied grant has recognised sub-types: necessity, common intention, and the rule in Wheeldon v Burrows — now restated by statute.

Section 40 of the LCLRA 2009 abolished and replaced the rule in Wheeldon v Burrows. On a disposition of part of the owner's land, an easement over the retained or other part is implied where it is necessary to the reasonable enjoyment of the part disposed of and it was reasonable to assume the parties intended it (s. 40(2)). Section 40(3) preserves easements of necessity, those giving effect to the common intention of the parties, and non-derogation from grant. An easement of necessity may be implied where land conveyed would otherwise be landlocked. In Palaceanne Management Ltd v Allied Irish Bank plc the Court of Appeal recognised an easement arising by implication, illustrating the overlap between the sub-types. Reservation of easements is construed more strictly than grant.

Acquisition II — prescription (the current Irish position)

Prescription allows an easement to be acquired by long, uninterrupted use as of right, which must be nec vi, nec clam, nec precario — without force, without secrecy, without permission. This is the most currency-sensitive part of the topic, because the rules changed.

The statutory prescription scheme originally introduced by the LCLRA 2009 was repealed by the Land and Conveyancing Law Reform Act 2021 (commenced 30 November 2021). Everything now turns on the relevant date, which the 2021 Act defines as 1 December 2009, when the 2009 scheme came into operation. Where the prescription period was completed before that date, the claim is governed by the law that applied before it (s. 2(a)). Where it was not, the claim proceeds under the doctrine of lost modern grant as it applies at common law (s. 2(b)) — for which the user required is 20 years. Section 3 then sets longer periods for lost modern grant claims against land owned by a State authority — 30 years, or 60 years where the land is foreshore — and those longer periods do not apply to claims falling under s. 2(a). The 2009 Act also had its own transitional route, which let a claim resting on pre-2009 user be brought under the old law. It was extended to twelve years by the Civil Law (Miscellaneous Provisions) Act 2011 and would have run to 1 December 2021, but the repeal of ss. 33–39 on 30 November 2021 closed it a day short; only claims and s. 49A applications already pending on that date were saved (s. 6(2)). That window is shut, and the repealed 2009 statutory scheme should not be cited as current law.

Profits à prendre and extinguishment

Treated alongside easements, a profit à prendre is a right to take something from another's land — turf, timber, fish or grazing. It is a legal interest under the LCLRA 2009 and, unlike an easement, need not be appurtenant to dominant land: it may exist in gross. Easements and profits can be extinguished — by release, unity of ownership or occupation, or abandonment — the 2021 Act having provided that the common law governs extinguishment.

Key authorities

The authorities that carry this topic:

• Re Ellenborough Park [1956] Ch 131 Persuasive (Eng) — The classic statement of the four characteristics of an easement; the foundational test.
• Connolly v South of Ireland Asphalt [1977] IR 99 Binding (IE) — O'Higgins CJ adopted the essential definition of an easement — the Irish authority.
• Hill v Tupper (1863) 2 H & C 121 Persuasive (Eng) — No easement where the right benefits the owner personally, not the land.
• Moody v Steggles (1879) 12 Ch D 261 Persuasive (Eng) — A right accommodating the dominant land (a pub sign) can be an easement.
• Copeland v Greenhalf [1952] Ch 488 Persuasive (Eng) — A right amounting to exclusive possession cannot exist as an easement.
• Flynn v Harte [1913] 2 IR 322 Binding (IE) — Servient owner may gate a right of way if access is preserved.
• Griffin v Keane (1927) 61 ILTR 177 Binding (IE) — Servient owner must not render the right of way unusable.
• Munnelly v Calcon Ltd [1978] IR 387 Binding (IE) — Leading Irish authority on the easement of support and its interference.
• Allen v Greenwood [1980] Ch 119 Persuasive (Eng) — Right to light by long user; measured by the building's character and use.
• Palaceanne Management Ltd v Allied Irish Bank plc [2017] IECA 141 Binding (IE) — Court of Appeal recognised an implied easement under s. 40 / Wheeldon v Burrows.

Key statutory references: LCLRA 2009 s. 40 (implied easements, replacing Wheeldon v Burrows); Land and Conveyancing Law Reform Act 2021 (prescription; commenced 30 November 2021); the doctrine of lost modern grant.

Related free notes: adverse possession in Ireland · all free Land Law notes.