Easements and covenants are the linchpin of property law. They govern what a landowner can or cannot do with their property. However, they also represent some of the most complex aspects of property law and have evolved over hundreds of years through the courts and statute. Their evolution has led to a number of discrepancies and ambiguities which means that, whilst they make ideal subject matter for knotty exam questions, they can be a costly source of contention between landowners.
Over the second half of the last century, there were piecemeal reviews of some of these laws, but it was not until 2008 that the Law Commission turned its sights onto the subject and issued a consultation paper on easements, covenants and profits à prendre.1 The results of the consultation were published on 8 June 2011 recommending a number of sweeping changes and providing a draft Law of Property Bill.
Few would dispute that these areas of law require comprehensive reform and that the Commission’s attention is long overdue. However it remains to be seen whether the recommendations are sufficiently far-reaching.
RIGHTS TO LIGHT
Disappointingly, the Commission does not deal with rights to light. Of these it says:
“We have heard calls throughout this project for additional work to be carried out, focused on the reform of rights to light. That would be a major piece of work, as the relevant property law would have to be examined alongside the relevant planning issues… So we do not wish to recommend special measures for rights to light in the course of this project.“
For many developers, it will be a missed opportunity to consider reform of the law dealing with rights to light, particularly as the Report does not include a specific recommendation that it be dealt with. It could be many more years before this area of the law is addressed.
However, there is some good news in that rights to light are included in the report’s recommendations regarding the acquisition of prescriptive rights, and the provisions of the Rights of Light Act 1959 and Custom of London (and other usual customs) will continue to apply to prevent the acquisition of rights to light.
PROFITS À PRENDRE
Profits à prendre are rights to take something from another’s land. Common examples are fishing or shooting rights. Currently, they are capable of arising expressly or by prescription or implication. The Law Commission proposes that from the date of reform they should only be created expressly or by statute. This should mean that profits à prendre become easier to identify.
Easements are the right for one landowner to make use of another’s land.
Acquisition through long use (prescription) Under the reforms, an easement will be acquired by 20 years of continuous qualifying use against the freehold owner without force, stealth or permission. All other methods of prescriptive acquisition will be abolished but use may be by a succession of people. It is not clear whether the 20 year period can be interrupted by a period of less than a year2 and, if so, how this will work in practice for rights such as rights of way.
The acquisition of an easement through long use can be prevented by the landowner granting permission to exercise the use and, under the reforms, this will no longer have to be in writing (which for rights to light will be a departure from the current law).
The 20 year period can be acquired at any time and no declaration from the court will be required to establish its existence. Once the requisite 20 years’ continuous use is satisfied, an easement will exist. However, unless it is registered at the Land Registry it will remain vulnerable where land is sold.
There will be a transitional period for those with over 19 years’ continuous use at the time of the reforms.
Easements by implication There are currently three different ways of implying the existence of an easement.3 These are overcomplicated and overlap one another. Instead, the Law Commission proposes that the only method to imply an easement will be where “it is necessary for the reasonable use of the land at that date.”4
Once again however, the change is not retrospective so that pre-reform dispositions will require analysis under the current complicated law.
ABANDONMENT OF EASEMENTS AND PROFITS À PRENDRE
A major criticism of the law of easements is that once acquired, it is almost impossible to terminate an easement without the agreement of the person who benefits from it. The only method is to establish abandonment. However, due to the onus on the owner of the affected land to prove both factual abandonment and an intention to abandon, there have been very few successful cases reported.
Under the proposed reforms, the owner of the land will only be required to prove the factual abandonment for a period of 20 continuous years. If satisfied, this will give rise to a rebuttable presumption that there was an intention to abandon the easement. It is unclear how difficult it will be for the person with the benefit of the easement to rebut the presumption.
The proposed changes to covenants are very sensible, and are aimed at simplifying the creation of obligations in relation to land. Instead of having separate rules for positive and restrictive covenants, the Law Commission propose a new land obligation which can be positive or restrictive in nature. Whether positive or restrictive, the benefit and burden of all land obligations will automatically pass with the ownership of the land.
The aim of the changes is to create a simplified system. However, as the reforms will not be wholly retrospective a two-tiered system will be created between the old and new law. Practitioners may therefore find that the system becomes even more complicated.
CANCELLATION OR MODIFICATION OF EASEMENTS AND COVENANTS
Since as long ago as 1966 there have been calls to facilitate an application to the Upper Tribunal for the cancellation or modification of an easement or profit.
Under current legislation a party burdened by a covenant may apply to the Upper Tribunal for cancellation or modification of the covenant on a number of limited grounds and, in most cases, compensation is payable based on the loss of benefit the covenant provides, which is usually significantly less than damages payable in lieu of an injunction against interference with a property right.
Under the Law Commission’s draft bill it will also be possible to cancel easements, profits à prendre and land obligations created after the reforms. Easements can only be modified if the modified interest is not materially less convenient to the land that benefits from them and no more burdensome to the land affected.
Because the changes will not apply to all easements, the result will be a two tier system for easements: first, the existing “cast iron” system with easements that cannot be modified or cancelled, but which can be declared abandoned after 20 years’ non-use; and second, the new easements which can be modified, cancelled or, after 20 years’ non-use, abandoned.
It remains to be seen whether this two tier system will result in a surge of proceedings during the transitional period as potential owners of easements seek to establish “cast iron” easements.
The Law Commission also recommends that the Upper Tribunal hear declarations on the enforceability of easements, profits and land obligations. Only those created post reform will be affected. Again, it is a sensible move designed to avoid parallel claims in the court and in the Upper Tribunal, which causes delay and additional cost. The breadth of legal expertise within the Upper Tribunal should also benefit claimants.
The Law Commission’s recommendations are a long needed and welcome modernisation to the law of easements, covenants and profits. At first glance they make sweeping changes, but to truly reform the law, many of the provisions in the draft bill should be retrospective. In particular, the property industry would benefit from the ability to modify easements and profits created many years ago which, in many cases, are a costly impediment to modern development.
Easements and covenants can often be timeless, so the two tier system created as a result of the proposed reforms is likely to make the law more complicated rather than simplifying it. It is therefore likely that easements, profits à prendre and covenants will continue to test both academic students and legal practitioners alike.
Furthermore, the timetable for the introduction of the reforms is unclear and having taken this long to reach this stage, the prospect of a speedy implementation looks slim.