“I have built a house on a site on the family farm. The pipework for the water, sewerage and gas cross land adjoining the site owned by my father before they connect to the mains. “I now wish to sell the house, but the purchasers are getting a mortgage and their bank will not give them the mortgage unless I get an easement in writing from my father for the pipes running through his land. My father has dementia and is not able to grant the easement.”

What is an easement and why is it necessary?

Easements are rights in relation to land, where the owner of land has an entitlement to enjoy rights over the land of another.

The land that enjoys the right is known as the “dominant land” and the land over which the easement is enjoyed is known as the “servient land”.

An easement can cover such things as a right for a water pipe, cable or sewer to run across a neighbour’s lands. If an easement exists, it could prevent the owner of the land on which the pipes are laid from interfering with the pipes and/or allow you access to the adjoining lands to repair the pipes if necessary.

Grant of an easement by deed

The simplest and most common way of acquiring an easement is where the land owner grants an easement by way of a deed, which can be registered with the Land Registry. In this case, an easement should have been granted when the site was transferred to you out of the family farm.

The exact location of the pipework would be marked on a land registry map by an engineer, so it is clear where exactly the pipes are. However, it appears that this was not attended to and thus becomes an issue now, when you want to sell the house.

Acquisition of an easement by prescription

The second way to acquire an easement is by prescription, whereby there is no deed or written document granting the easement but the rights have been established through long use, generally 20 years.

These prescriptive easements were rarely registered in the Land Registry and were instead vouched by declarations by previous owners, which declarations are normally kept with the title deeds.

In order to establish an easement by prescription, the following requirements must be established:

  • The use or enjoyment must be for the “relevant period”.
  • The use or enjoyment must be “as of right”.
  • The use or enjoyment must be “without interruption”.

    • Unless you can establish all three requirements, it will be difficult to claim that you have acquired rights by prescription.

    Relevant user period

    The relevant period depends on when the use of the right commenced.

    If you had been using the right before the 1 December 2009 and have 20 years use before 30 November 2021, the relevant period is 20 years.

    However, if you only began using the right after 1 December 2009, the relevant period is 12 years user.

    Where a right is being asserted against the State, the period is 30 years – or 60 years in the case of foreshore.

    User as of right

    The person claiming the existence of the right must show user as of right – ie that he/she enjoyed the right and the person over whose land the right exists joined in with the use or enjoyment.

    The use of the right must have been without force, without secrecy and without the oral or written consent of the person who owns the land over which the way exists.

    Without force

    If the owner of the land over which the right has been claimed has disputed the right, commenced legal proceedings disputing the existence of the right or attempted to physically prevent enjoyment, before the 12/20-year user period has expired, no right has been established.

    Without secrecy

    The enjoyment of the right must be open in order to give the person against whom the right is claimed an opportunity to prevent the acquisition of the right.

    Actual knowledge of use of the right by the owner of the land over which the right is claimed is not necessary where enjoyment could be discovered by a reasonable inspection of the land.

    Without consent

    If the owner of the land, over which the right exists had not consented (in writing or orally) to the use of the right by the person using it, it will be difficult to establish a claim.

    User without interruption

    The use must be without interruption. This is defined as interference with the use of the right for a period of one year by the person who owns the land over which the right is claimed.

    Easement of necessity

    Easements of necessity arise on occasion but are generally limited to rights of way of necessity. However, there have been cases where rights have been described as rights of necessity.

    For instance, with regard to the right to use a septic tank in Presho V Doohan and Ostan Thoraigh Comhlacht Teo, Peter Bland – a leading expert in the area – opines that the restriction of the principle to rights of way is too well established to disturb. He further opines that the right of way of necessity is also a construct that does not easily apply to other rights.

    In the circumstances, the most practical option may be to re-route the pipework along the public road, so that it does not cross over the land not in your ownership. This may be the quickest and least-expensive solution to the problem.