Easements, Covenants and Profits à Prendre

Status: This project is complete.  We await the Government's response to our recommendations

We have made recommendations that modernise and simplify the law, removing anomalies, inconsistencies and unnecessary complications where they exist.  People 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, mortgage lenders 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 landowners, solicitors, licensed conveyancers, Land Registry and the Lands Chamber of the Upper Tribunal.

The project was concerned with three interests: easements, covenants and profits à prendre.

Easements
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.  Easements and covenants are of practical importance to a large number of landowners.  The rights can be fundamental to the enjoyment of property. Their effective operation is also crucial to the successful development of land for housing.

Covenants
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.

Profits à prendre
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 project

On 8 June 2011, the Law Commission published its report.  This followed the publication, on 28 March 2008, of a consultation to which we received a large number of detailed responses.  We published, at the same time as the report, a detailed analysis of these responses.

A project on rights to light, a specific type of easement, was included in our Eleventh Programme of Law Reform.  Further information on that project, which is due to start in early 2012, is available.

Our recommendations

Our recommendations, and the draft Law of Property Bill, are contained in the report.  Some of the reforms we recommend would:

  • make it possible for the benefit and burden of positive obligations to be enforced by and against subsequent owners;
  • simplify and make clearer the rules relating to the acquisition of easements by prescription (or long use of land) and implication, as well as the termination of easements by abandonment;
  • give greater flexibility to developers to establish the webs of rights and obligations that allow modern estates to function;
  • facilitate the creation of easements that allow a substantial use of land by the benefiting owner (for example, rights to park a car);
  • expand the jurisdiction of the Lands Chamber of the Upper Tribunal to allow for the discharge and modification of easements and profits created post-reform.

These recommendations, and the others that we make, would make the law relating to easements, covenants and profits à prendre fit for the needs of the twenty-first century and a modern registration system.