Under the new Land & Conveyancing Law Reform Act, 2009  there are new laws, which govern rights of way, rights of water, sewage rights, turbary rights, drainage rights and many other rights enjoyed by one landowner over the land of another landowner.  These are called easements and it is important that all landowners be aware of the changes in the Law relating to certain kinds of easement resulting from the above Act.

The change in the Law affects principally easements acquired by prescription.  An easement acquired by prescription is one which has been used for a period of time without interruption or dispute.  Until now the period of time that was necessary to establish such a right was taken as twenty years.  The new law changes this.  It states that where a landowner has rights over other land which have been acquired by prescription i.e. by long use the landowner must apply to the Court (usually the Circuit Court) for a Court Order that the landowner has this right and must after this register it in the Land Registry or the Registry of Deeds.  The application to the Court must be made on or before the 1^st of December, 2012.  Such a claim is based on the Law before the new Act came into effect i.e. use of the property for twenty years.

If the landowner does not bring the claim within the period of three years from the 1^st of December, 2009 the landowner’s rights are dealt with by the new Law relating to prescription rights.  This changes the required period of user from twenty years down to twelve years.  However the new law states that the time runs only from the coming into effect of the above Act and this effectively means that the landowner if he fails to bring a Court Application on or before the 1^st of December, 2012 may not bring a fresh application before the 1^st of December, 2021 i.e. twelve years from the coming into effect of the new law.

The new law does not affect rights, which have been granted by one landowner to another or by Court Order but only where such rights arise from long user.

It is particularly important that landowners especially those contemplating sales or mortgages of property are aware of the new law for example owners of lands locked property i.e. property surrounded by property in the ownership of a third party where right of access has been gained as a result of long user unless the landowner brings a claim to obtain a Court Order that the right exists before the 1^st of December, 2012.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”) has just been passed into law, although the date when it will enter into force is still unknown and awaits a Ministerial Order.

Prior to the passing of the Act, unmarried couples had no legal rights or entitlements to lay claim to the assets or estate of their partner. The phrase “common law spouse” had also given many couples the wrong impression that certain entitlements might accrue from their relationship. However, the Act will now introduce very significant changes to the legal status of unmarried couples, both same-sex and opposite-sex.

The Act deals separately with both the civil registration of same-sex partnerships (Civil Partnership) and the rights and duties of cohabiting couples.

Civil Partnership

The largest part of the Act deals with the introduction of Civil Partnership for same-sex couples and sets out the rights and obligations which will arise once a civil partnership has been properly registered. The Act also sets out the manner in which civil partnerships may be dissolved and under what conditions.

The main effects of the Act are:

• To create a new legal relationship of civil partnership for same-sex couples who choose to register their relationship, which may end only on the death of a partner or dissolution by a court;
• To make detailed provision for the formalities and procedures for registration of civil partnerships; and
• To give legal effect to a range of property, financial and other rights and entitlements consequent on civil partnership to include provision for maintenance, protection of shared homes, inheritance entitlements and pension provision.

The Act also introduces inheritance rights for civil partners which are equivalent to those of spouses, with regard to both a legal right share on testate succession and rules for distribution on intestacy. The Act, as passed, is silent on the tax and social welfare treatment of civil partners. Any reliefs which may accompany the registration of a civil partnership are unknown as yet. However, it is envisaged that these provisions will feature in future Finance and Social Welfare legislation.

Cohabiting Couples

The Act introduces significant changes to the current law relating to cohabiting couples and introduces various rights and obligations for these couples.

For cohabiting couples (both opposite-sex or same-sex couples who are either unmarried or not registered in a civil partnership), the Act will now impose certain rights and obligations upon these individuals, unless the couple specifically choose to opt out of these protections.

The Act establishes a “redress” or “safety net” scheme for cohabiting couples. The aim of the redress scheme is to protect an economically dependent or vulnerable party at the end of a long-term cohabiting relationship, whether arising on relationship breakdown or on death. It allows “qualified” cohabitants to apply to court for certain reliefs, including property adjustment orders, compensatory maintenance orders, pension adjustment orders and orders for provision from the estate of a deceased cohabitant. No tax or social welfare reliefs have been made for cohabiting couples under the Act, as passed.

The Act has defined “qualified cohabitants” as cohabitants residing together as an unmarried couple in an intimate relationship for a period of five years, or two years where there is a child or children of the relationship. In determining what orders, if any, might be made, the economic dependency of the claiming partner is the key factor, although other criteria must also be taken into account, to include the rights of other parties (including any spouses or civil partners in existence), the duration of the relationship and the contributions made by each cohabitant, whether financial or otherwise.

The Act also makes express provision for the recognition of Cohabitant Agreements enabling (and encouraging) cohabitants to regulate their joint financial affairs and also enabling couples, where they may so decide, to specifically opt out of the redress scheme in their particular circumstances. The Act provides that a Cohabitant Agreement will be valid and enforceable if it is in writing and signed by both cohabitants with the benefit of independent legal advice, in accordance with the standard principles of Contract Law.