1. Appurtenant Rights in General
Generally, where there is enjoyed with land (the dominant tenement) a right over other land (the servient tenement) in the nature of an easement or profits a prendre and the extent of the user of this right is governed by the needs of the dominant tenement, such right is appurtenant to the dominant tenement. It is then so attached to the dominant tenement that it follows it into whosoever hands the dominant tenement comes. (For a possible exception see ‘squatter’Practice Direction: Adverse Possession – Title by Adverse Possession to Registered Land). The tenements must, apparently, consist of corporeal property although it has been questioned whether an incorporeal right can be an appurtenance to an incorporeal right e.g. a right of way appurtenant to a right of fishing, Hanbury -v- Jenkins 1901 2 Ch.407. Such a right cannot exist in gross and if it is severed from the dominant tenement by the unilateral act of the owner of the dominant tenement it will be extinguished and merge in the servient tenement. In order to sever an appurtenant right from the dominant tenement and make it appurtenant to another dominant tenement, the owner of the servient tenement and the owner of the first dominant tenement must join in a deed of release and regrant.
The Land Commission may, in certain circumstances, declare rights of turbary and grazing formerly enjoyed by the tenant of a holding to be appurtenant to his holding. (See Land Act 1931, section 40). Formerly registration under Q.3 Agreements purporting to vest incorporeal hereditaments such as rights of turbary, fishing, etc was refused because the Irish Land Commission had no power to vest such rights. Now the Irish Land Commission has such power under section 19 of the Land Act 1965. Accordingly, registration is now to be effected in such cases. In any case of difficulty the official concerned should seek the direction of the Divisional Manager.
Note: Land and Conveyancing Law Reform Act 2009: Section 34 abolishes the acquisition of an easement or profit a prendre by prescription at common law and prescription by way of lost modern grant. From 1st December 2009, acquisition by prescription shall be in accordance with section 35.
Section 35 provides an easement or profit a prendre shall be acquired at law by prescription only on registration of a court order made under section 35.
Subsection 35(2) provides that in an action to establish or dispute the acquisition by prescription of an easement or profit the court shall make an order declaring the existence of the easement or profit if it is satisfied that there was a relevant user period immediately before the commencement of the action. Note the period of user must be immediately before the court action.
Under section 35(3), the Court may make an Order under subsection 2 where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all of the circumstances of the case.
An order made under subsection 2 shall be registered in the Registry of Deeds or Land Registry.
“Relevant user period” means a period of user as of right without interruption for 12 years [as opposed to 20 and 40 year periods for easements and 30 and 60 year periods for profits under the 1832 Act], in the case of a State Authority the relevant user period is 30 years and in the case of foreshore, 60 years.
Appurtenant rights may be extinguished by operation of law, by statute, by express or implied release. It is to be noted, however, that it is extremely difficult to establish the extinguishment of such a right by abandonment. In fact, for registration purposes, a Court Order would probably be necessary in such a case.
Section 39 of the 2009 Act provides that on the expiry of a 12 year continuous period of non-user of an easement or profit acquired by (a) prescription or (b) implied grant or reservation is extinguished except where a notice in the prescribed form is registered in the Registry of Deeds or Land Registry as appropriate. Note: This applies to easements/profits a prendre notwithstanding that it was acquired before 1st December 2009, provided at least 3 years of the period of non-user occurs after such commencement.
The Court retains a wide jurisdiction to declare that an easement or profit however acquired has been abandoned or extinguished.
Note: Where Court Orders are lodged for registration under section 35, a suitable map must be lodged meeting standard mapping requirements.
2. Rights of Pasture and Grazing
When such rights are appurtenant to lands they can be apportioned on alienation of part of the lands. If on the alienation of part of registered land no apportionment is made, the lands on each folio, parent and new, should be stated to be entitled in conjunction with the lands on the other folio to the appurtenant rights originally on the parent folio.
Where the owner of the dominant tenement purports to transfer the appurtenant grazing right to a person other than the owner of the servient tenement, the right becomes extinguished and the statement on the folio of the dominant tenement that it is appurtenant, etc is to be cancelled. Where the owner of the dominant tenement transfers the appurtenant right to the owner of the servient tenement, merger takes place and the appurtenant right is to be cancelled. In this case also if both dominant and servient tenements are registered land the right, if registered as a burden on the servient tenement, is to be cancelled. If the ownership of the dominant tenement is unregistered an examination of title will be necessary before cancellation of the burden on the registered tenement.
When the appurtenant right is transferred to a person other than the owner of the servient tenement, if the appurtenant right is registered as a burden on the servient tenement, the burden is not to be cancelled until application is made for its cancellation and such application is to be considered on its merits.
Occasionally it appears on folios that there is appurtenant to the lands a right of grazing for an ascertained number of animals collops or sums. Such right is not apparently a true appurtenance and can be enjoyed in gross. It may, therefore, be severed from the lands by alienation.
Where a deed purporting to do this is lodged for registration effect may be given to it by cancelling the statement on the folio that the rights are appurtenant to the lands and by entering the rights, their ownership, and burdens on the Register maintained under section 8(b) of the Registration of Title Act 1964.
3. Rights of Turbary
A right to take turf for fuel in a house is not appurtenant to the lands but to the dwellinghouse situate on the lands: it cannot be apportioned or severed from the dwellinghouse. The right cannot apparently be severed even if the dominant owner is entitled to a fixed quantity. If, however, the dwellinghouse is replaced by another dwellinghouse on the same lands in continuance of the ancient one the right of turbary automatically attaches to the new dwellinghouse. On a transfer of part of lands on a folio on which there is an appurtenant right of turbary the right should be entered on the folio of the part on which the dwellinghouse is situate and should not appear on the folio of the part that is severed from the dwellinghouse.
In the past, for a considerable period the Land Commission have been erroneously granting rights of turbary for fuel as appurtenant to parcels of land when in fact the dwellinghouse was situate on the parent holding. In re Bohan 1957 I.R. page 49 refers.
If an appurtenant right of turbary for fuel appears on the parent folio, such right is to be registered as attaching only to the part on which the dwellinghouse is situate and the transfer of part is to be dealt with accordingly. The fact that the appurtenant right of turbary is noted on the parent folio as being appurtenant to land other than the lands on which the dwellinghouse is situate is to be disregarded and the necessary amendments are to be carried out in accordance with the order of Teevan J set out below.
” In the matter of the Land Purchase Acts and the Registration of Title Act 1964 and of certain Fiated Purchase Agreements or Vesting Orders.
Whereas the Irish Land Commission by fiated purchase agreements or vesting orders allotted to certain tenant purchasers parcels of land on which there are no dwellinghouses and directed therein that such parcels be consolidated with holdings of the said purchasers already registered.
AND WHEREAS some of such agreements and orders purport to grant rights of turbary or rights of turbary and rights to take bog mould for manure for the benefit of such parcels and whereas subsequently such parcels have become registered in the Land Registry.
It is ordered therefore that the Registrar of Titles be at liberty to amend the register when necessary by making such entries therein so as to show that the said rights are appurtenant to all the property comprised in the folio.
27 March 1969”
On a transfer of part an appurtenant right to take bog mould for use as manure is to be accepted as being appurtenant to lands to which it is stated on the folio to be appurtenant.
The following practice is to be adopted on registration of a Vesting Order or a Fiated Purchase Agreement vesting a parcel in a tenant purchaser and directing that such parcel be consolidated with holdings already registered and where such order or agreement purports to grant an appurtenant right of turbary and an appurtenant right to take bog mould then;
1. If the said appurtenant rights are for the benefit of the parcel only and the Vesting Order or Fiated Purchase Agreement is lodged on or prior to the 27 March 1969 the said appurtenant rights are to be entered as being appurtenant to all the property on the new consolidated folio.
2. If the said appurtenant rights are for the benefit of the parcel only and the Vesting Order or Fiated Purchase Agreement is lodged subsequent to the 27 March 1969 it is to be returned to the Land Commission so that they may specify clearly the lands to which the right is appurtenant.
3. If the Vesting Order or Fiated Purchase Agreement makes the said appurtenant turbary rights appurtenant to all the lands to be consolidated, the said appurtenant rights are to be noted as appurtenant to all the property on the new consolidated folio.
If the owner of the dominant tenement purports to transfer the appurtenant right to a stranger or to the owner of the servient tenement, such a transfer will have the same effect as a transfer of an appurtenant grazing right, and is to be dealt with in the manner set out at 2 supra.
On some folios appurtenant turbary rights are expressed to be exclusive rights of turbary for household purposes only or are otherwise limited to the fuel needs of the owner of the dominant tenement; such a turbary right is not to be treated as being an ‘exclusive’ right capable of severance and (or) apportionment and is to be dealt with as above as if the word ‘exclusive’ was not used in the description of the right.
It may be, however, that a right to cut an ascertained quantity of turf, or an exclusive right to cut turf on a plot, can be apportioned, or severed from the holding to which it is stated to be appurtenant. There appears to be no modern decided case on the point. Any such application should be referred to the Regional Manager for a direction.
A right to take bog mould for the use of the lands on a folio is distinct from the right of taking turf for a house. This right is in the same position as an appurtenant right of grazing and is to be dealt with in the same manner as at 2 supra.
4. Rights of Way
Normally an easement must be appurtenant to lands; it cannot exist in gross. It is, therefore, necessary to ascertain the dominant tenement for the benefit of which the easement exists and to enter the right as a burden on the servient tenement.
EXCEPTION: Under section 69(n) of the Registration of Title Act 1964 any right of the Land Commission or local authority to lay pipe lines or any right ancillary thereto may be registered as a burden.
Where registration of a right of way as a burden in favour of the Land Commission or local authority is sought, the dominant tenement is not to be referred to in the entry unless the right is expressly created as appurtenant to a specific dominant tenement in the Grant. In such cases no question is to be raised as to whether a right of way in favour of a local authority is or is not ancillary to a pipe line.
Under section 20 of the Land Act 1965, the Land Commission have power to confer rights of way without such rights being appurtenant to any land such rights are to be registered as burdens on the servient tenement of registered land under section 69(r) of the Act. Formerly when the Land Commission created rights of way as appurtenant to registered land registration was refused on the dominant tenement because the Auhtority was unable to enter a note of such appurtenance on the register of the dominant tenement. Such registration may now be effected having regard to section 82 of the Act. If the servient tenement is registered land, the right must be registered as a burden thereon.
A right of way cannot be excessively used. For example, where the owner of the dominant tenement acquires other land contiguous to the dominant tenement, he is not entitled to use the right of way for the service of the extra land. The right cannot be made appurtenant to the extra land without the concurrence of the owner of the servient tenement.
5. Entry of Appurtenant Rights on the Register
The appurtenant rights specified in Rule 25(1) of the Land Registration Rules 2012, were always entered on the Register in Part 1 of the folio. From the 1st January 1967, when the existence of appurtenant rights acquired (otherwise than by prescription in relation to which see Practice Direction “Easements and Profits à Prendre Acquired by Prescription under Section 49A”), are proved to the satisfaction of the Authority, it shall make an entry on the register showing their existence. (Section 82 of the Registration of Title Act and Rule 25(2) of the 2012 Rules.) The Divisional Manager shall be responsible for the registration of all cases under Rule 25(2) where the title to the servient tenement is absolute and the owner of the servient tenement is the grantor of the right.
Legal Services shall be responsible for the registration of all other cases under Rule 25(2).
The Authority must be satisfied as to the title of the Grantor to grant the right. The entry of the burden on the servient tenement should, where possible, identify the land to which it is appurtenant, and give, where the ownership of the dominant tenement is registered, the Registry Map references together with the folio number of the dominant tenement. The entry of the appurtenant right on the dominant tenement should, where possible, identify the servient tenement and give, where the ownership of the servient tenement is registered, the Registry Map references together with the folio number of the servient tenement. In either case, if the right only affects or is appurtenant to a part of a folio, the part to which it is appurtenant or which it affects should be clearly identified by reference to the Registry Map
When dealing with a folio on which there appears a right of the owner of the lands to exercise a right of turbary, or right of way, or the like, if it appears from the documents that, either through change of folio number or plan number or otherwise, the reference to the dominant tenement is incorrectly stated on the folio comprising the servient tenement, the official settling the draft entries or new folios is to direct, by draft entry, the amendment of the references so that the correct reference to the dominant tenement as shown on the office map at the time of such dealing is shown on the folio comprising the servient tenement. This applies also (mutatis mutandis) to cases in which the reference to the servient tenement is incorrectly stated on the folio comprising the dominant tenement.
On a transfer of part of lands on which a right is registered as a burden the Mapping Branch should be asked to certify whether the right affects the lands transferred, and if so, whether it also continues to affect any part of the lands retained, and the necessary entries should be made on the new and parent folios so as to make both conform with the facts ascertained.
On the registration as burden on land of easements and profits a prendre granted as appurtenant to other lands, the entry in the Folio should show the person to whom the right is granted, his estate in the right granted, and the land to which the right is appurtenant. For example: a Grant of a right of way should be entered as the right of A, his heirs and assigns (or in fee-simple), the registered owner of part of the lands of……….shown as plan edged red on the Registry Map of the Townland (O.S…….), to pass and repass etc (the words of the Grant to be adopted: it is not the business of the Registry to interpret them) from……..to……..by and over the way coloured …..on the plan of the lands herein on said map.
If the Grant does not grant or reserve to the grantee the right to him and his heirs, or to him in fee-simple, the right is, of course, not to be entered as a right to the grantee ‘and his heirs’ or to him ‘in fee-simple’.
The practice of entering an appurtenant easement or right as the right “for the registered owner for the time being of” etc is to be discontinued. In no case are the words “and occupiers” to be used: see Westropp -v- C.D.B. (1918) I I.R. 265, 272, 53, I.L.T.R.89.
Updated 31 March 2017
Amended “enjoined” to read “enjoyed” in second last sub-paragraph of paragraph 2 on 27 February 2019.