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Land rights reform in government's hands

Proposed bill 'sensible' but fails to address prescriptive easements

13 June 2011

The success of “sensible” proposals to simplify the law on easements and other non-ownership property rights will depend on the government taking them forward as lawyers have warned that they could, like earlier moves, end up gathering dust on Whitehall shelves.

Last week the Law Commission published its report and proposed draft bill recommending that the rules on easements, profits à prendre and covenants should, in the main, be put on statutory footing (see box below).

Stephen Bickford-Smith, barrister at Landmark Chambers, said the recommend-ations were “sensible and well considered” and would simplify advice to clients on some issues, saying the law had become “complicated and unpredictable”.

“The problem at the moment is that land sales are fraught with difficulties because of prescriptive easements and unclear restrictive covenants, where it isn’t clear whether there is a covenant and who’s entitled to the benefit of it,” he said.

Bickford-Smith welcomed in particular the proposal to turn profits à prendre into ‘land obligations’ allowing positive obligations to be imposed on successors in title, and the reform of section 62 of the Law of Property Act 1925 – which can create an easement or profit without the express intention of the parties – “so that it doesn’t have the current arbitrary effect of transforming permissive rights granted to somebody prior to sale into an easement after sale”.

But Bickford-Smith said a disappointing omission was the abolition of prescriptive easements and the introduction of a system that would prevent them arising, which had featured in earlier documents.

“Many countries – Australia and New Zealand in particular – have gone down this route so it is slightly surprising the commission would have stepped back from earlier proposals,” he said. “Most people would say that it’s a retrograde step – particularly as easements of light have become topical.”

Bickford-Smith said it wasn’t clear whether the government would be prepared to find the time to turn the proposals into law but that the need to maintain the competitiveness of the City of London could be a sufficient incentive.

“There’s a perception that prescriptive easements are hindering developments in London and other large urban areas,” he said. “The problem from a developer’s point of view is that he gets his planning permission which will involve him in fairly extensive exercises to demonstrate that daylight and sunlight in neighbouring properties won’t be adversely affected, and is then faced with these types of claims which can be very complex and difficult to resolve.”

Mark Pawlowski, property law professor at the University of Greenwich, was more sceptical about the government’s interest in the proposals.

“The most recent recommendations no doubt tick all the right boxes in terms of simplification and greater clarity in the law, but like so many other Law Commission proposals – for example, the stream of reports, published since 1985, on the abolition of the law of forfeiture and the introduction of a statutory scheme for termination of tenancies as a result of tenant default – will this too be consigned to the dusty shelves of academia?”

Pawlowski pointed out that the commission itself seemed to openly acknowledge its full recommendations might prove difficult to implement in the current climate of cost restraint and suggested an alternative involving the enactment of its recommend-ations for easements and profits only without the introduction of the ‘full-package’ of land obligations.

“Given the strong argument for an integrated package which the commission recognises as offering ‘the greatest benefits’, the government will simply use this as an excuse to shelve and do nothing,” he said. “Active lobbying by interested parties, such as the Law Society and property organisations, might help, but I doubt if there will be any government department willing to put resources into even modest implementation in the foreseeable future.”

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