Summary and implications

Developers need certainty that they can proceed with a development without interference from third parties. One area of uncertainty has always been easements.

Easements are rights for the owner of land to do something over another’s land. Examples are rights of way, rights of passage of services, rights of support and rights to light and air. They are not simple contractual arrangements, but bind successors in title to land. They are therefore of financial benefit to the owner of the land with the benefit of such rights and can be a development hurdle for the owner of the land with the burden of such rights.

The Law Commission recently published a report on easements, covenants and profits à prendre. The report contains a draft bill dealing with reforms on the laws relating to easements, covenants and profits à prendre. For the purposes of this update, we will focus on the Law Commission’s proposals relating to the acquisition and abandonment of easements.

By way of summary, the Law Commission proposes:

  • A new statutory rule for acquiring easements by long use: The abolition of the existing laws on acquiring easements by long use and its replacement with a new statutory method.
  • A new method for modification and discharge of easements: New powers for the Lands Chamber to modify and discharge easements.
  • A new statutory rule for abandonment of easements: A new statutory presumption that easements not exercised for 20 years have been abandoned.

The Law Commission has not proposed an overhaul on the laws relating to rights to light. There will be a separate Law Commission report on rights to light in the future.

  1. Easy come: the acquisition of easements

The Law Commission made various suggestions to tidy up anomalies that have developed over time. However, for the purpose of this update, we have focused on the Law Commission’s proposals for the acquisition of easements by long use, or prescription.

Current law

Under current law, “prescription” refers to rights acquired by use over time which has not been exercised by force, by stealth or with the other land owner’s permission. Rights acquired by prescription can be acquired under the following regimes:

  • Common law – use since 1189 (based on the assumption that a benefit over someone else’s land enjoyed for at least 20 years is to be treated as use of that benefit since 1189, unless there is evidence to the contrary);
  • Lost modern grant – based on a presumption that a benefit over someone else’s land enjoyed for at least 20 years at any time was granted by a deed that has been lost, unless it can be established that the owner of the land subject to the right could not have made the grant;
  • Under the Prescription Act 1832 – if one land owner enjoys a benefit over someone else’s land, the other land owner will not be successful in bringing a claim against the first land owner, if that first land owner has enjoyed that benefit for the last 20 years without interruption before legal action is taken. Only interruptions of one year or more will be treated as an interruption. Therefore, use of a benefit over someone else’s land of 19 years and one day is sufficient. For the right to actually crystallise though, a third party must bring a claim.

Current law

Easements can be created or acquired in a number of ways:

  • Express grant and reservation (i.e. a document creating a right);
  • Implied grant and reservation (i.e. where the document does not expressly grant or reserve a right, but where this is implied); and
  • Prescription (i.e. long use).

Law Commission’s proposals

The Law Commission proposes to abolish all current laws on prescription and proposes a new statutory method of prescription based on use. The main points of this proposal are as follows:

  • It must be a “qualifying use of land” (see box to the right);
  • Use must have been for a continuous period of 20 years (although the proposals do not clearly state whether the 20 years has to be immediately preceding the date the right is claimed);
  • The easement will be a freehold easement (i.e. it will benefit the freehold owner of the land with the benefit of the right and bind the freehold owner of the land burdened by the right) but it will also bind leasehold owners of the land with the burden of the right;
  • Rights will be subject to local usage or custom (see the comment below regarding the Custom of London and rights to light).

The obvious benefits of the proposed scheme is that it will no longer rely on a legal fiction assuming use since 1189, it will also not require litigation to be brought to establish the right (as under the Prescription Act 1832).

Qualifying use of land

  • Use to which a right could be granted as an easement;
  • Without force, stealth or possession;
  • Not the same possession or ownership of the land with both the benefit and burden of the use;
  • Not where the owner of the land burdened by the use is unable to grant a freehold right;
  • Not where the land with the burden of the use is let; and
  • Not a right to light against the Crown (see below).
  1. Easy go: how can easements be brought to an end?

Just as easements may be created by express grant and reservation, parties may agree to release rights. However, if parties are unable to agree, how can a developer of land subject to an easement have certainty that a particular easement will not prevent it from developing its land?

Modification and discharge

The Law Commission has proposed that the Lands Chamber’s jurisdiction is extended to cover easements, so that it can modify and discharge easements in the way it currently does for restrictive covenants.

Abandonment

The above change to the Lands Chamber’s powers will only apply to easements created after the date the legal reforms on easements come into effect. It will not apply to easements created before that date.

Therefore, the law relating to abandonment will be relevant to existing easements created or acquired before the law reforms take effect. The current law on abandonment is unclear. The main premise of the principle is that, just as, over time, rights can be acquired by user, so they can also be extinguished by non-user. However, case law is inconsistent.

The Law Commission has suggested that there should be a statutory presumption that where an easement has not been used for a continuous period of 20 years, it has been abandoned. The presumption could be rebutted by evidence to the contrary.

  1.  Rights to light and air

The Law Commission acknowledged that the current law relating to rights to light and air “gives rise to disproportionate practical problems”. However, their current report is concerned only with general principles of easements and does not focus on any specific rights.

The proposed bill does, however, retain Crown immunity, so that rights to light cannot be obtained by way of prescription against the Crown. The proposed bill also ensures that any rights to light created by way of prescriptive acquisition under the new scheme are subject to any local usage or custom to which they are currently subject.

The Custom of London which currently permits freehold owners in the city to build or rebuild on ancient foundations to any height, regardless of the interference with light and air to adjoining owners, will therefore defeat any claim for prescriptive acquisition under the proposed bill, as it currently defeats any claim for prescription by way of common law or lost modern grant.

Rights to light – future review

In July 2011, the Law Commission announced that it intends to start work on a review of rights to light in early 2012 and produce a draft bill in 2014 or 2015. Therefore, for the time being, rights to light and air will continue to be a concern for all developers.

Click here for the Law Commission’s programme of law reform.