Easements, Covenants and Profits à Prendre
On 28 March 2008 the Law Commission published a consultation paper provisionally proposing wide-ranging reform of the law governing easements, covenants and profits à prendre. The Commission's work in this area builds upon its joint work with the Land Registry which culminated in the Land Registration Act 2002.
An executive summary and a press release are available.
We are currently working on a final report, which we hope to publish with a draft Bill in late 2010/early 2011.
Background
Easements and covenants are of practical importance to a large number of landowners. Recent Land Registry figures suggest that at least 65% of freehold titles are subject to one or more easements and 79% are subject to one or more restrictive covenants. The rights can be fundamental to the enjoyment of property. Their effective operation is also crucial to the successful development of land for housing.
Nature of the rights and scope of the project
An easement is a right enjoyed by one landowner over the land of another.
- A positive easement (such as a right of way) involves a landowner going onto or making use of something in or on a neighbour's land.
- A negative easement is essentially a right to receive something (such as light or support) from the land of another without obstruction or interference.
The types of covenant considered by the project are promises, usually contained in a deed, made in relation to land. Covenants may be positive or restrictive, and, where restrictive, can have some characteristics which are normally associated with property rights.
The third sort of right - a profit à prendre - gives the holder the right to remove products of natural growth from another’s land. Many profits concern ancient, but not necessarily obsolete practices; some, such as the right to fish or shoot on the land of another, can be of great commercial value.
The consultation paper makes provisional proposals for the reform of the general law governing easements, covenants and profits à prendre: their characteristics, how they are created, how they come to an end and how they can be modified. Although the scope of the project is wide, it is concerned only with private law rights and does not consider public rights such as public rights of way. Nor does the project include covenants entered into between landlord and tenant (in their capacity as such) which are subject to special rules.
Aims
The aim of the project is to modernise and simplify the law, removing anomalies, inconsistencies and unnecessary complications where they exist. Those who are most affected by the current law, such as private homeowners, business and organisations that own property, those who deal with and develop land and professional advisers, would benefit greatly if the law was more accessible and easier to operate. Reform would also offer net benefits to all those involved in the conveyancing process, including lay persons, solicitors, licensed conveyancers and Land Registry.
Main proposals
The consultation paper takes the provisional view that the current law’s distinction between easements, covenants and profits à prendre is valuable and should be retained. It contains a number of detailed provisional proposals including:
- abolition of the existing methods of prescriptive acquisition of easements and the creation of a single new method of prescriptive acquisition;
- rationalisation of the current law of extinguishment of easements;
- creation of a new interest in land - the Land Obligation - to take the place of positive and restrictive covenants; and
- modernisation of the statutory means by which restrictive covenants can be discharged and modified and the application of those rules to easements, profits and Land Obligations.
The consultation closed on 30 June 2008.
We hosted a seminar on our consultation paper on 4 June 2008 at the Institute of Advanced Legal Studies. The presentations given by Stuart Bridge, our former Commissioner, and Michael Croker, Land Registry, are available.
The Commission is now in the process of reviewing the responses to the consultation paper, with a view to finalising its policy on this project. We hope to publish a report and draft Bill setting out our final recommendations for reform of this area of law in late 2010/early 2011.
For more information, contact the property and trust law team or go to the team page.
NOTE - We are happy to provide information about our projects. However, we cannot give legal advice or deal with individual cases. Nor do we provide legal research to assist with student assignments. This does not affect your rights under the Freedom of Information Act 2000 to request information.