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

(1) where the proprietor of one part of the land (whether retained or
transferred) will not be able to comply with the obligation following a
transfer of part. This could arise where the obligation was to maintain a
fence, for example, and the transferred part did not have access to the
fence; and
(2) where the obligation was to make a monetary payment. Either the
payment would have to be attributed to one or other part as a whole, or
there would have to be an apportionment. In any event there has to be a
default rule for liability of the servient owners amongst themselves.
6.120 It is worth stressing that good drafting practice will ensure that these problems do
not arise. It will be important when creating land obligations to consider carefully
the extent of the burdened land; thought should be given to the possibility of
subdivision in the future.
6.121 So where X sells part of his land to Y, and Y takes on a positive land obligation to
maintain the boundary fence, if Y’s land is a single building plot then it may well
be appropriate for the whole of Y’s land to be burdened by the obligation. But if
Y’s land is rather more extensive, and it is possible that it will be sold off in the
future – whether as two houses or twenty – then the problem described at
paragraph 6.119(1) above will arise, unless careful consideration is given, at the
time when the obligation is created, to the need to ensure that only properties
adjacent to the fence are bound by the obligation. 91
6.122 It is important to note that while two owners benefited by the same obligation
might reasonably agree that one should no longer benefit from an obligation
without that troubling the servient owner, it cannot be possible for two servient
owners to agree that one should be released from an obligation, without
reference to the dominant owner. The priority rules determine that, where the
whole of land burdened by an obligation is divided, both or indeed all the parts
must remain liable for the obligation as a whole; and we proposed in the
Consultation Paper 92 and recommend below 93 that in the case of positive land
obligations that liability should be joint and several. 94 To allow for division of the
obligation by agreement between the servient owners would be potentially to
prejudice the dominant owner, and indeed to allow landowners to escape from
burdens. 95
91
Similar considerations will arise in relation to X’s land if it is to be burdened with a
reciprocal payment obligation.
92 Consultation Paper, para 10.26.
93 See para 6.126 below.
94 The majority of consultees agreed that liability should be joint and several unless the
dominant owner agreed to a variation or an alternative basis had been expressly set out in
the deed creating the Land Obligation. See the Analysis of Responses, paras 10.21 to
10.28.
95 The majority of consultees agreed. The London Property Support Lawyers Group said (in
response to Consultation Paper, para 10.26), “otherwise it would be very easy for the
original owner to apportion to a part of the land which was then transferred to a company
with no assets”.
144