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

PART 2
ESTATES AND INTERESTS IN LAND: THE
CURRENT LAW
INTRODUCTION
2.1 This project involves concepts at the heart of land law. We have written this Part
as an introduction to the relevant law as it stands at the moment. Many of our
readers will be familiar with this background; those for whom it is new material
may want to go beyond the introduction we give here, and are referred to the
standard texts. 1 We take the opportunity within this Part to mention a number of
points that we raised in the Consultation Paper but have decided not to pursue;
they are discussed in more detail in the Analysis of Responses.
2.2 In this Part we discuss the current law in four sections:
(1) we look at the foundations of land law, and discuss the nature of legal
and equitable estates and interests in land;
(2) we look at the nature of easements, covenants and profits and at some
of their characteristics, and we also look briefly at estate rentcharges;
(3) we sketch the requirements for the creation and registration of these
interests; and
(4) we discuss briefly the ways in which these interests may come to an end.
THE FOUNDATIONS OF LAND LAW
Estates and interests in land
2.3 The land law of England and Wales is founded upon the idea of rights in land.
The most significant of the available rights are the fee simple (or freehold) and
the lease. These are rights to possession of land, and are colloquially regarded
as ownership rights. 2 If X is the freeholder of a house, it belongs to X, subject to
the Crown’s eventual rights if X dies and there is no-one to inherit the land. If X
has a lease, long or short (the shorter leases are known as tenancies), X has the
exclusive right to possession of it for the duration of the lease, at which point it
reverts to the landlord. These ownership rights are known as estates. There are
numerous less extensive rights known as interests, and we have already
discussed a number of them in Part 1. There are the security rights – mortgages
and the like – and there are also rights to make use of land, or to control its use –
in particular easements, covenants and profits. The latter are the subject-matter
1 Suggested texts are S Gardner, An Introduction to Land Law (2nd ed 2009); K Gray and S
F Gray, Elements of Land Law (5th ed 2009) (to which we refer as “Gray and Gray”) and C
Harpum, S Bridge and M Dixon, Megarry and Wade, The Law of Real Property (7th ed
2008) (to which we refer as “Megarry and Wade”). Frequent reference will also be made
throughout this Report to J R Gaunt and P Morgan, Gale on Easements (18th ed 2008), to
which we refer as “Gale on Easements”. See also E Cooke, Land Law (2006).
2
Although a very short lease, such as a weekly tenancy, probably does not, for most
people, feel like ownership.
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