Reforming the law of prescription: A cautionary tale from Ireland

Abstract

The law on the prescriptive acquisition of easements and profits, as it evolved in England and Wales and was inherited by other common law jurisdictions, has long been considered unsatisfactory. ‘Clouds and darkness [had] settled down over the whole subject’ even before the ‘fitting addition to the chaos’ represented by the Prescription Act 1832. It is not surprising, therefore, that reform has been under consideration in a number of jurisdictions. As part of a wide-ranging reform of land law in the Republic of Ireland, the law of prescription was radically recast by Part 8 of the Land and Conveyancing Law Reform Act 2009 (the LCLRA). The three existing forms of prescription — common law prescription, prescription under the doctrine of lost modern grant, and statutory prescription under the Prescription Act 1832 — were abolished and replaced by a new form of statutory prescription. The period for the acquisition by prescription was reduced to 12 years, creating what one commentator has described as ‘The most liberal system of prescription ever proposed’. The new regime was due to come into effect after a three-year transition period but, before this period had elapsed, the scheme was modified by the Civil Law (Miscellaneous Provisions) Act 2011. Unfortunately, even after the 2011 amendments, there appear to be significant difficulties with the new Irish scheme. This chapter analyses the problems that have arisen in Ireland in relation to the reform of the law of prescription and considers the possible lessons for reformers in other jurisdictions, giving special attention to comparisons with the proposals made by the Law Commission for England and Wales in 2011