Making Land Work: Easements, Covenants and ... - Law Commission

IMPACT ASSESSMENT
1.26 Since its formation in 1965 the Law Commission’s recommendations have been
framed in the light of our assessment of their impact on those affected by them.
Our founding statute requires us to recommend simplification of the law and the
removal of anomalies. 21 It is a matter of common sense that the law is improved if
it is as simple as is consistent with the achievement of its objectives. Sometimes,
however, fairness and efficiency require detailed provisions; over-simplification
can produce bad law.
1.27 At paragraph 1.34 of the Consultation Paper we asked consultees to give us
information and views about the likely impact of our provisional proposals, and
we received some very helpful comments that have informed our eventual
recommendations. In this very wide-ranging project we have endeavoured to
simplify the law as much as we can, to reduce anomalies, and to ensure that
where we recommend the introduction of new material it fits within the existing
grammar of land law. We have endeavoured to weed out complexity from the
current law – the reduction of the methods of prescription from three to one is an
obvious example – without removing important material. Our recommendations
on the implication of easements, for example, bring together the useful elements
of the current law, but make them clear and accessible.
1.28 We have been particularly concerned in this project to work with Land Registry to
ensure that impacts are positive for Land Registry itself and for its customers,
and also to make recommendations that will have a beneficial impact upon the
public and upon developers and mortgagees. We have also worked with the
President and staff of the Lands Chamber in framing recommendations for the
development of the Lands Chamber’s jurisdiction.
1.29 In the Impact Assessment we have endeavoured to quantify the financial impact
of our recommendations, and we are indebted to those who have assisted us in
its preparation.
1.30 Our Impact Assessment formally identifies two options for implementation of our
recommendations. Option 1 is to implement them all together. That would enable
Government to adopt our draft Bill in its entirety, and would bring into effect an
integrated package which would modernise this whole area of law and bring
about the greatest benefits. This is by far our preferred option.
1.31 However, we recognise that implementation has costs, and that in a time when
resources are under particular scrutiny and pressure, the implementation of the
whole package of reform might prove difficult. We have therefore identified an
option 2, which would put into effect our recommendations for easements and
profits without introducing land obligations. That would bring about important and
necessary reforms whilst postponing the initial cost and complication of more
fundamental reforms. It would also be a missed opportunity, because the benefits
of introducing land obligations – and thereby moving away from the archaic and
problematic law of freehold covenants – would not be realised. But we put it
forward as a pragmatic solution to what we hope is a short-term difficulty in the
implementation of valuable law reform.
21 Law Commissions Act 1965, s 3.
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