Breaking new ground

The Law Commission has proposed wide-sweeping reforms to ancient land rights and obligations.
Its report, Making Land Work: Easements, Covenants and Profits à Prendre, published last week, suggests simplifying and streamlining the law to make it easier for buyers, vendors, developers and mortgage-lenders to ascertain the often complex rights and responsibilities attaching to plots of land.

The proposals include simplifying the law of easements by prescription and implication, replacing restrictive covenants with “land obligations” and extending the jurisdiction of the lands chamber of the upper tribunal to cover easements, profits and land obligations.

LexisPSL property law solicitor, Malcolm Dowden said: “The Law Commission proposals offer an extremely sensible and practical response to a range of anomalies—some ancient, others far more recent creations of the court.    

“At the moment, an easement can lay unused for decades (in one case more than 150 years) but remain capable of being revived. The proposed reforms would establish a rebuttable presumption that an easement has been abandoned where it has not been used for at least 20 years. That change would radically shift the balance in favour of development, while preserving the right of the person with the benefit of an unused easement to show that an actual intention to use it remains.

“The proposal relating to the Law of Property Act 1925, s 62 is particularly welcome. It would remove the trap created by Hair v Gillman [2000] 3 EGLR 74, where a permission to park was transformed by a conveyance into a legally enforceable right binding all subsequent owners of the property.”