The Law Commission of England & Wales has today published its recommendations on the reform of the law relating to easements, covenants and profits à prendre aimed at maximising the effective use of land.  This will be a far reaching reform of an area which is complex and where subtle distinctions are often difficult to justify.

It is also an area which can have a profound and often unexpected impact on the ability to develop land.

The main recommendations are as follows:

Easements - rights for one landowner to make use of another's land

Existing methods of acquiring rights over land by long use (prescription) would be replaced by a single statutory method when such rights have been exercised without stealth, force or permission for a period of 20 years. Similarly, existing methods of acquiring rights by implication would be replaced by a single statutory principle that easements will be implied where they are necessary for the reasonable use of the land at the time of the transaction.   Many of the technicalities associated with the existing law would be swept away, which is to be welcomed.

The Upper Tribunal's (formerly the Lands Tribunal) power to modify or release restrictive covenants would be extended to apply to easements. In principle, this change ought to be welcomed by developers as it will help prevent the use of archaic easements to frustrate or ransom developments. However, as the power will only apply to future easements, it is likely to be many years before the change has any real impact.

Covenants - obligations relating to the use of the land

The Commission recommend the introduction of a new registerable interest in land (referred to as a "land obligation"), the aim being to simplify the existing law by doing away with the distinction between positive and restrictive covenants.  The new registerable "land obligation" would be positive or negative in nature and would bind subsequent owners provided the obligation was of clear benefit to the land. This would mean that a positive obligation, for example, to build a retaining wall would pass automatically to subsequent owners.

This is an inherently sensible proposal and should simplify future conveyancing transactions, although given that most existing covenants are not time limited, we would be left with a two-tiered system which could be a recipe for confusion.

Also to be welcomed is the pragmatic recommendation that the current rule whereby an easement that benefits a lease survives when the lease is merged into the freehold, should be reversed but with ability for the freeholder to elect to retain the benefit of the interests appurtenant to the surrendered/merged lease.

Rights of Light

The Law Commission does not propose any specific reforms to the law relating to rights of light. The report recognises that rights of light are of considerable importance in practice, and that a specific review relating to rights of light may be needed but it appears that such a review is not on the immediate agenda beyond the proposals which apply to all easements.

However, the Law Commission recommend that the "Custom of London" which prevents the acquisition of some (but not all) prescriptive rights of light within the City of London, would continue to apply.  This will prevent the acquisition of rights of light under the proposed new statutory method.  Its abolition would have been regarded by many as a fetter on the City's ability to complete in today's global marketplace.

Similarly, it appears that the extended power of the Upper Tribunal to modify or release easements will also apply to rights of light created after the new law has been implemented.  In our view, this should have been retrospective so that applications could be made now to discharge or modify rights of light which were granted many years ago in a very different environment.

Summary

If the Law Commission's reforms are adopted (and no timetable for implementation has been suggested), they will undoubtedly result in a simplification of the law and will go some way toward preventing land owners from using their rights to frustrate much needed developments. However, as the Law Commission has limited its proposed reforms to newly created rights, leaving the existing law in place for those already in existence, this will create a two-tiered system which, for the foreseeable future at least, seems likely to deprive the reforms of much of their effect. 

A full copy of the report is available on www.lawcom.gov.uk