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Law commission’s report and draft bill on easements covenants and profits à prendre reform

14.06.11

 

The Law Commission’s long-awaited Report and draft Bill on the reform of easements, covenants and profits à prendre was published on 8th June. Andrew Francis is a member of the advisory board for this reform programme.

The Report and draft Bill is a “must read” for all property advisers. The key features of the reform proposals which are set out in the Bill are:

  • the simplification of the present complex rules which govern the creation of easements and profits
  • the introduction of a new way in which obligations relating to land will be attached to land, as legal interests. This will include the ability to create positive obligations to be enforced, thereby removing the current restrictions on the enforceability of positive covenants
  • the enlargement of the jurisdiction of the Lands Chamber to discharge or modify land obligations and easements and profits created after the commencement of any reform.

As is ever the case the “devil is in the detail”. But the practical impact of the proposed reforms cannot be overestimated. One important reform of the law of easements is that there will only be one way of acquiring an easement by long use, defined by Cl . 16 of the Bill as “qualifying use” for a period of 20 years. Gone will be the need to consider 1189, or the 1832 Prescription Act. But some things will remain, such as the Custom of London in rights of light cases. In the new regime of land obligations the importance of the ability to enforce newly created positive obligations will be hugely important, especially between residential neighbours where there are fences and other commonly enjoyed features.

The Report and Bill may be accessed on the Easements projects page of the Law Commission’s website at www.lawcom.gov.uk.


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