You may have heard of a man by the name of Donald Trump. Businessman, reality TV star, no stranger to controversy – and now President-Elect of the United States of America. Mr Trump made his money in property developments, and owns a number of high-profile golf courses and resorts. One such resort is Doonbeg Golf Course and Hotel in Co Clare.
In January 2014, Doonbeg went into receivership. It attracted significant interest from international property developers and was quickly acquired by Trump International Golf Links, a company within the Trump Organisation conglomerate. Mr Trump had big plans for the resort, saying: ‘Doonbeg is an already terrific property that we will make even better – it will soon be an unparalleled resort destination with the highest standards of luxury.’
In 2009, Clare County Council voted to extinguish a right of way across the fourth and fourteenth holes of Doonbeg golf course. This followed a protracted legal battle with the golf club over An Bord Pleanála’s ruling that a perimeter wall on the course was built without planning permission and obstructed the established right of way over the course, which had inspired multiple High Court actions. The Council decided to construct an alternative right of way a short distance along Donoughmore Beach. Despite being supported by 22 of the 25 members of the Council, this decision further stoked controversy and was challenged in the High Court in 2011 by local resident James McNulty. The initial action was held to be statute-barred. Additionally, the Court held that there was nothing wrong with the Council’s proposal to establish an alternative right of way. The case was appealed to the Supreme Court; last month, the Court was told that the Council had now abandoned its 2009 plan to extinguish the right of way. The three-judge Court accepted the case was now moot and that the only matters remaining to be determined concerned costs of the High Court and Supreme Court actions.
The Court was somewhat scathing in its comments about the presidential candidate’s level of engagement with the case. As the Irish Times reported:
Ms Justice Elizabeth Dunne asked Mr Connolly [SC, for the defendant] why something was not done to have the legal proceedings dealt with sooner, given that it was well known the course had been sold to a company of ‘the person who has been attracting so much attention lately.’ Mr Connolly replied the council were not in communication with the Trump company at that stage, but, later, in 2015, when it did get in touch there was no response. Mr Justice Clarke said it appeared ‘Trump has no interest in extinguishing the right of way’.
It is likely, of course, that Mr Trump has bigger issues on his mind at the moment, but his company ought to have engaged better with the Council on this issue. The continued existence of the right of way may very well prove to be a problem for Mr Trump’s plans to redevelop Doonbeg. A right of way is a common and probably the most familiar form of easement, a legal instrument by which a person other than the legal owner of a property holds certain rights in respect of the land.
An easement is a proprietary right to do something over the land of another (known as the servient tenement) for the benefit of one’s own land (the dominant tenement). It attaches to the land, and thus can be transferred to successors-in-title. This is how the right of way at Doonbeg continues to exist even though the land has changed hands since the time the right of way was created.
Easements can be created by express grant, by implication, by virtue of an estoppel, or by prescription. Expressly granted easements rarely cause controversy, as they are made by deed of conveyance. Implied easements chiefly come about through reservation, now governed by s 69 (1) of the Land and Conveyancing Law Reform Act 2009 (‘LCLRA’), and by non-derogation from grant. The Law Reform Commission recommended, in advance of the LCLRA, that non-derogation from grant ought to be the primary method of implying easements. LCLRA s 40 (2) provides:
Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which (a) is necessary to the reasonable enjoyment of the part disposed of, and (b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date of disposition took effect as being included in it.
This leaves prescription; probably the most controversial method of creating easements, and, for most of its history, unnecessarily complicated. It is also known as ‘acquisition by long user’ or ‘presumed grant’. It is justified on grounds similar to those for adverse possession, and can perhaps be best envisaged as a less extreme form of adverse possession, a means of recognising claims to rights by people who have used land in a particular way for a long period of time, while striving to interfere to the least extent possible with the other rights of the legal owner of the land. Fiona de Londras has written critically of prescription of easements, as well as of adverse possession, but accepts that ‘if we facilitate one, then we will facilitate the other’ since anything else would be patently inconsistent.
Academic distaste for prescription of easements has been fuelled in part by the frankly ludicrous nature of the common law scheme in this area. Three methods existed for prescription of easements: common law; lost modern grant; and statutory prescription. While the latter was relatively straightforward in theory if somewhat difficult to establish in practice (and branded ‘a spectacular failure’ to rationalise the law in this area by Peter Bland), it is no exaggeration to say that the first two rested on legal fictions on par, perhaps, with some of Mr Trump’s claims.
Common law prescription resulted in the recognition of an easement where the claimant could establish a user period of 20 years before the case was initiated. The Court would then presume that the right had been enjoyed since before the year 1189, known as ‘time immemorial’ or ‘the limit of legal memory’, and thus the law was only recognising a right that pre-dated the common law itself. This presumption could be rebutted by evidence of non-user at any time before the 20-year user and after the year 1189.
Alternatively, evidence of 20 years user could lead to a presumption of a lost modern grant, ie, that an express grant of an easement had been made at some point since 1189 but that the deed had been lost over the years. This presumption could not be rebutted by evidence of non-user. However, if the legal owner could prove that it was impossible for such a grant to be made, the Court would not recognise the easement. Interestingly, this method has been used as recently as 2004 to establish an easement by prescription (and a similar claim was rejected in 2015).
The LCLRA has simplified the law in this area, bringing it in line with the conditions for adverse possession (inter alia, 12 years user as of right). However, the LCLRA does not allow for years of user before the commencement of the Act to be counted in calculating the user period. Thus, any attempts to create an easement before 2021 at the earliest will have to rely on the old common law methods.
It is likely from the facts of the Doonbeg case that it was a public easement at issue, and it should be noted that the law in relation to public easements is somewhat different. One must appreciate that in such a case there is not necessarily one dominant tenement, but rather the local community at large enjoys the rights. Public easements have proven extremely controversial (and expensive) – see for example, the Lissadell House case. Mr Trump may ultimately find it easier to build a wall along the southern border of the United States (and get Mexico to pay for it) than to build one along a beach in County Clare.