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Commission proposes shake up of ancient land rights

8 June 2011

The Law Commission has proposed a radical shake up of the laws governing the acquisition of rights over land such as easements, covenants and profits à prendre that would sweep away centuries of obscure case-based rules.

The proposals, contained in a draft bill published today, are intended to simplify the law on non-ownership rights over property, make conveyancing easier and help prevent neighbour disputes.

Among the changes proposed, developers could draw up binding covenants setting out the positive obligations on owners of neighbouring properties instead of having to use mechanisms such as estate rent charges or the granting of a lease.

In practice this means neighbours sharing a fence or driveway would be clear about their joint responsibility for maintenance and liability to make a financial contribution to one another.

Under the draft rules the acquisition of an easement by prescription will only be possible in circumstances meeting the new statutory definition of “qualifying use”. This will require 20 years of use, not involving force, and no secrecy.

“This is a powerful concept, where casual trespass isn’t going to qualify,” Professor Lizzie Cooke, the law commissioner in charge of the project, told Solicitors Journal.

Cooke also said the proposed bill would make all these rights registrable, allowing buyers of land and developers to clearly establish the existence and extent of these rights at the time of purchase.

Currently only easements and profits are entered on the land registry; covenants are an equitable interest, which may only appear as a burden on the property without identifying the beneficiary.

At present easements can be acquired by prescription in one of three alternative ways: by common law, where the right has been enjoyed since 1189; by lost modern grant, requiring 20 years of use of the purported easement; or under one of the situations listed in the Prescription Act 1832.

Easements may also be acquired by implication, a method based on the concepts of ‘necessity’ and ‘intended use’, which Cooke said requires the application of complex case law. She said the bill would replace this with a single statutory principle recognising an easement as implied where it is “necessary for the reasonable use of the land at the time of the transaction”.

Another major change would be the abolition of covenants, which would be replaced by ‘land obligations’. Like easements and profits these new obligations would be capable of registration, identifying both the benefit and the burden.

In a departure from current rules – where an original owner may remain liable even after he has sold the land – the original parties to the land obligation would also be free from any future liability for breach of the obligation.

Profits would also be reformed. It would no longer be possible to acquire them by prescription or implication but solely by express bargain.

Typically profits have been used to establish grazing or mining rights. Due to the commercial nature of most profits the commission regards it as appropriate that they should be created in contract.

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