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Friday, 10 June 2011

Law Commission Blows the Cobwebs Out of Land Law

The Law Commission published a report on 8 June 2011 called Making Land Work: Easements, Covenants and Profits a Prendre.

The proposals amount to a radical shake up of ancient rules, many based on centuries of common law dating back to 1189, which are often difficult to understand, never mind explain in plain English.

The reforms are contained in a draft Law of Property Bill and are designed to simplify the law on rights over someone else’s property, make conveyancing easier and help prevent neighbour disputes.

The Law Commission recognises that these rights are essential to the effective use of land and are relied upon by a significant proportion of property owners – land can be worthless without access, or with inadequate service media. Obligations can protect the character of land and enhance its amenity or financial value.

However, it has concluded that “parts of the current law are ancient, contradictory and unfit for modern society” and are therefore ripe for an overhaul.

I don’t want to go into this in too much detail as I’d end up writing a (not very good) text book. There’s a useful commentary in the Solicitors Journal and a very helpful executive summary of the reforms by the Law Commission itself. And, if you’re very keen, the full 257 page report is here!

Here are the main points covered in the reforms:

·         They will simplify the law relating to the creation of easements (which are rights over someone else’s land), sweeping away the many and complex ways in which these can arise without being created expressly. For example it will no longer be possible to acquire these rights by casual trespass

·         The introduction of a new way to attach obligations to land, replacing (for the future) the law relating to restrictive covenants and enabling positive as well as negative obligations to be directly enforceable against successors in title. This will make it easier to deal with responsibility for maintenance of and contributions towards things like shared driveways or fences.

·         “Covenants” will be replaced by the more modern sounding “land obligations”. And, unlike with covenants, the original parties to a land obligation will be free from any future liability once they have sold their land.

·         It will be easier for developers to establish the webs of rights and obligations that allow modern estates to function – which will do away with the need to use complex devices like rent charges or leases to achieve straightforward objectives.

·         It will be easier to create easements that allow a substantial use of land by someone else (for example, rights to park a car).

·         “Profits” (for example grazing or mining rights) will only be acquired by express contract – not by prescription or implication. This seems sensible because these things are largely commercial enterprises.

·         All the rights will be shown on the registers maintained by Land Registry – so buyers will be able to identify clearly the relevant rights before buying.

·         The jurisdiction of the Lands Chamber of the Upper Tribunal will be expanded to allow for the discharge and modification of easements and profits created in future.

The validity and enforceability of existing rights won’t be affected – so unfortunately we’ll still need to know the old law for a good while to come.

The report has already attracted much comment from legal experts – here is a flavour on the Estates Gazette blog.

Some have expressed disappointment that the reforms do not specifically deal with rights of light (although there may be implications for light in the general reforms on prescription and compensation). Whilst rights to light might benefit from a separate review, it seems that is likely to be some years off. Here are some of my recent posts on rights to light issues.

But the proposed reforms are long overdue and a welcome attempt to bring this area of law into the 21st century.

I hope the proposed reforms become law.

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