Clarification of the law on prescriptive easements and profits à prendre: Land and Conveyancing Law Reform Act 2021
Major changes to the law on prescriptive easements and profits à prendre come into effect today, 30 November 2021, following the enactment of the Land and Conveyancing Law Reform Act 2021 on 26 November 2021.
Difficulties with the new regime for the acquisition of prescriptive rights introduced by the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) and the end of the transition period on 30 November 2021 caused significant concern amongst property lawyers and lenders, where access to or use of property relied on prescriptive rights. The Act averts the statutory deadline by repealing the changes introduced by the 2009 Act and seeks to address some of the legal issues around the acquisition and registration of prescriptive rights.
Whilst the Minister for Justice originally proposed extending the statutory deadline by six years, this provision does not appear in the Act. Rather, the Act repeals Sections 33 to 39 of the 2009 Act altogether and sets out new rules for the law on acquiring and validating prescriptive rights.
How will prescriptive rights be acquired post-30 November 2021?
Claims will be decided under the common law ‘doctrine of lost modern grant’ (which requires a 20 year prescriptive use period), pending a more comprehensive review of the law in this area (which the Minister has committed to carrying out). This means that proof of the existence of a prescriptive right will revert to the use of statutory declarations in support of good marketable title where there is an undocumented right that has been relied upon for a significant period of time.
A longer use period will be required for the acquisition of prescriptive rights against State-owned land (including foreshore) after 30 November 2021; 30 years for land owned by a State authority and 60 years for foreshore.
What about prescriptive rights acquired pre-30 November 2021?
Claims based on user periods completed before 1 December 2009 will be decided in accordance with the law that applied before that date, i.e. based on the ‘doctrine of lost modern grant’, common law prescription or statutory prescription under the Prescription Act 1832.
Applications (to court, or to the Property Registration Authority (“PRA”)) to validate or register prescriptive rights that are currently pending will not be affected by the changes contained in the Act.
Whilst clarification of the uncertainty in relation to the legal changes set out in the 2009 Act is welcome, the measures set out above may cause concern for landowners because validation of prescriptive rights by way of a court application or registration with the PRA will be optional (as it was before the 2009 Act), rather than a mandatory requirement to avoid losing any rights acquired through long use. However, those who rely on prescriptive rights, including statutory undertakers, will welcome the fact that registration is no longer required, given the well-documented issues with the PRA registration process.
 An easement is a private right held by one landowner over the property of an adjoining landowner, e.g. a right of way to access property, a right to use pipes or cables running under an adjoining landowner’s property or a right of support between adjacent buildings in different ownership. A profit à prendre is a private right held by one person (not necessarily a property owner) over another person’s land (not necessarily a neighbour) that involves taking a natural product of the land, e.g. a right to fish, hunt or mine. Prescriptive easements or profits à prendre are ones that have been acquired by prescription, i.e. by long use as of right, where there is no written deed formally granting the right.