easements by prescription

Danes

Hi,

what would be the position if someone abandoned a old dwelling with an easement of prescription allowing access to that dwelling, in favour of a new house on a different site (still on their own land) but also needing to use the same access?

Would the old easement be transferable?

dermot_sheehan

New house would need a right of way.

Prescription is where a right is acquired by long usuage (20 years+) rather then by grant.

A right of way would have to be granted for the new house by the land owner (unless you want to wait 20 years without land owner seeking to prohibit access).

Old right of way would remain unless it can be shown it was abandoned (high threshold to prove this)

Danes

Thanks for your reply.

nuac

easements are a legal minefield.

A major case Walsh v Sligo Co Co took over 40 days in the High COurt. Judgement expected next month from Bryan McMahon.

As he is a most erudite judge, it should be interesting.

dermot_sheehan

Might add, the 2009 Act makes significant changes. From now on an easement must be established by court action after 12 years user and the court order registered, an easement can be abolished by 12 years non user.

This only applies to easements after Dec 2009, so if an easement was acquired before that day it would still exist.