Can a registered easement be extinguished?

summereire

In principle, can a registered easement - say for example a wayleave - be extinguished? I'm studying it at the moment, and I know of the various complexities with the 2009 act if is in use but NOT registered. But what about the opposite situation, if a wayleave IS registered but has not been in use? Is there any basis for it being extinguished or does that concept only apply to non-registered burdens?

Thanks!

summereire

From what I can see registration protects it regardless of usage, is there anything I'm missing?

The PRAI:

"Section 39 of the 2009 Act [as amended by section 39 of the 2011 Act] introduced a qualified extinguishment of easements and profits à prendre acquired by prescription or implied grant or reservation, and provided that on the expiry of a 12 year period of non user of an easement or profit acquired by prescription or implication, the easement or profit is extinguished except where it is protected by registration in the Registry of Deeds or the Land Registry, as appropriate. It has no application to rights created by express grant."

http://www.prai.ie/eng/News/Registration_of_Easements_and_Profits_à_Prendre_Acquired_by_Prescription_under_Section_49A_Published_9th_December_2011_.24118.shortcut.html

Pat Mustard

summereire wrote: »

From what I can see registration protects it regardless of usage, is there anything I'm missing?

The PRAI:

"Section 39 of the 2009 Act [as amended by section 39 of the 2011 Act] introduced a qualified extinguishment of easements and profits à prendre acquired by prescription or implied grant or reservation, and provided that on the expiry of a 12 year period of non user of an easement or profit acquired by prescription or implication, the easement or profit is extinguished except where it is protected by registration in the Registry of Deeds or the Land Registry, as appropriate. It has no application to rights created by express grant."


http://www.prai.ie/eng/News/Registration_of_Easements_and_Profits_à_Prendre_Acquired_by_Prescription_under_Section_49A_Published_9th_December_2011_.24118.shortcut.html

You quoted the above paragraph, but I don't understand why you haven't mentioned the useful paragraphs which come immediately afterwards. In any case, a paraphrase of what is written there is as follows:

S.39(3) of the Land and Conveyancing Law Reform Act 2009 states that nothing in S.39 affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.

Further, s.39(1A) of the Land and Conveyancing Law Reform Act 2009 states that exercise of power by the Property Registration Authority to modify or cancel a burden under section 69(4) of the Registration of Title Act 1964 is not affected.

summereire

Thanks. Is it just up to the discretion of the court then whether or not a registered wayleave is considered to remain current or not? Is there any particular laws of usage that this is based on, or is it just based on precedent? The reason I ask is that wayleaves seem different than rights of way, in that they can fairly be expected to be in regular use, but you're not necessarily going to use a wayleave that much. For example a landlocked property with well water, that has a registered wayleave but hasn't had cause to use it, and then they decide to hook up to the mains.

Pat Mustard

summereire wrote: »

Thanks. Is it just up to the discretion of the court then whether or not a registered wayleave is considered to remain current or not? Is there any particular laws of usage that this is based on, or is it just based on precedent? The reason I ask is that wayleaves seem different than rights of way, in that they can fairly be expected to be in regular use, but you're not necessarily going to use a wayleave that much. For example a landlocked property with well water, that has a registered wayleave but hasn't had cause to use it, and then they decide to hook up to the mains.

Interesting question, but I'm afraid that I might get it wrong if I attempted to answer it, without checking the appropriate reference books.

Can I suggest Bland on Easements in relation to this. If memory serves, the 2009 edition takes account of the 2009 Act.

summereire

Thanks, I'll look that up. Any online references or anything that's likely to be in the UCD law library is much appreciated!

carol11

Can anyone advise? IF my neighbour has wayleave over my land to lay pipes but in the 6 years his pipes have not run as per wayleave agreement , does this make it void? He has now (presently) drilling his own well so will i be able to quash wayleave?

Tom Young

Seek professional legal advice.