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

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6 Interpretation 194 Law of Property Bill Part 1 — Attaching obligations to land 14 Construction of statutory references to interests, or rights, in or over land (1) Any reference in an existing enactment to interests, or rights, in or over land, unless expressed to be limited to interests or rights of a particular kind, is to be read as including obligations imposed under section 1. (2) Any reference in an existing enactment to incumbrances affecting land, unless expressed to be limited to incumbrances of a particular kind, is to be read as including obligations imposed under section 1. (3) References in this section to an existing enactment are to an enactment contained in— (a) an Act passed before the date on which this Act is passed, or (b) an instrument made under an Act before that date. 15 Interpretation of Part In this Part— “apportionment arrangement”, in relation to a positive obligation imposed under section 1, means an arrangement about the allocation of responsibility for performance of the obligation; “burdened estate”, in relation to an obligation imposed under section 1, means the estate in land by virtue of the ownership of which the obligation was imposed; “burdened land”, in relation to an obligation imposed under section 1, means the land, or any part of the land, burdened by the obligation at the time of imposition; “negative”, in relation to an obligation imposed under section 1, means of a kind mentioned in subsection (3)(a) of that section; “positive”, in relation to an obligation imposed under section 1, means of a kind mentioned in subsection (3)(b), (c) or (d) of that section; “reciprocal payment obligation” means an obligation of a kind mentioned in section 1(3)(c) (as to which see section 1(5)); “related obligation”, in relation to a reciprocal payment obligation, means the obligation whose performance gives rise to liability to pay an amount under the reciprocal payment obligation. PART 2 EASEMENTS, PROFITS AND OBLIGATIONS UNDER SECTION 1 Prescription 16 Acquisition of easements by long use (1) Qualifying use of land for a continuous period of 20 years has effect to create an easement in relation to that use. (2) An easement created by virtue of this section is— (a) for an interest equivalent to an estate in fee simple absolute in possession, and 5 10 15 20 25 30 35 40
Law of Property Bill Part 2 — Easements, profits and obligations under section 1 (b) appurtenant to the fee simple in the dominant tenement. (3) When an easement is created by virtue of this section, it binds the owner of any interest then subsisting in the servient tenement. (4) Rights to light created by virtue of this section are subject to any local usage or custom to which rights to light acquired by prescription at common law or under the doctrine of lost modern grant are subject. (5) This section has effect in relation to use before, as well as in relation to use on or after, the date on which this section comes into force, but only if the use before that date is part of a period of use which includes that date. 17 “Qualifying use” for the purposes of section 16 (1) Subject to subsections (2) to (6), use is qualifying use for the purposes of section 16 if— (a) it is of a kind in relation to which a right could be granted as an easement, and (b) it takes place without force, without stealth and without permission. (2) Use is not qualifying use for the purposes of section 16 if it takes place at a time when there is — (a) unity of possession in relation to the dominant and servient tenements, or (b) unity of ownership of the fee simple in those tenements. (3) Use is not qualifying use for the purposes of section 16 if it takes place at a time when the person in whom the fee simple in the servient tenement is vested is not competent to grant an easement in relation to that use for an interest equivalent to a fee simple absolute in possession. (4) Subject to subsection (5), use which takes place when the servient tenement is let is not qualifying use for the purposes of section 16 if— (a) the person in whom the fee simple in the servient tenement is vested does not have power to prevent the use while the lease continues, or (b) the use takes place at a time when it has not come to the knowledge of, and could not reasonably have been discovered by, that person. (5) Subsection (4) does not apply if— (a) the use began before the lease was granted, and (b) when the lease was granted, the person in whom the fee simple in the servient tenement was vested knew about the use or could reasonably have discovered it. (6) Use is not qualifying use for the purposes of this section if— (a) it is use for the purpose of access of light, and (b) the land which is the subject of the use is land in which there is a Crown or Duchy interest. (7) In subsection (6), “Crown or Duchy interest” means any interest— (a) belonging to Her Majesty or the Duchy of Cornwall, or (b) belonging to a Government department or held in trust for the purposes of a Government department. 195 7 5 10 15 20 25 30 35 40
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The Law Commission (LAW COM No 327)
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MAKING LAND WORK: EASEMENTS, COVENA
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vi Paragraph Page (7) The terminati
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viii Paragraph Page Remedies for br
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covenant not to build upon it, for
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This is an important area with sign
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7 we recommend that that jurisdicti
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HUMAN RIGHTS 1.32 In a project conc
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of this Report; they do not general
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(b) A rentcharge in possession issu
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Many further examples could be give
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2.25 Second, the easement must acco
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2.34 The profits with which we are
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2.42 A restrictive covenant is not
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2.53 In the Consultation Paper we m
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2.62 Rights that do not qualify for
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CONCLUSION 2.72 In this Part we hav
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more. 3.6 Consultees were keen to r
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implied. 14 3.14 The necessity must
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Further bases for implication 3.22
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to a single general principle … i
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any test for implication must be ap
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(1) A conveyance of land shall be d
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intention of the “grantor”. Bec
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from the case law; a claimant may c
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3.82 We have heard calls throughout
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landowner’s objections or protest
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y lost modern grant. The introducti
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3.108 Under the 1832 Act a tenant c
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period, and imposes exactly the sam
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criminal. 132 3.130 Note that the s
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egistration principles. 140 3.139 N
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elaxation of the restriction. We we
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to make the acquisition of a right
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simple owner. 171 When land is let,
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than requiring people to do battle
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And that was the difficulty with th
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3.200 Clearly if such arrangements
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that the servient owner can access
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Abandonment is not, we think, to be
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3.230 We recommend that where an ea
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3.239 However, the Court of Appeal
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We agree that where an easement is
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3.253 Yet we hear the practical con
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and so our clause enables an electi
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4.6 Schedules 4 and 8 to the Land R
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ecause of the antiquity of those in
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will reach Land Registry - and the
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into one title, the easement is lik
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4.50 That reform is to apply to int
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easement being created. Short-form
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PROBLEMS IN THE LAW RELATING TO COV
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e registered and there would then b
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obligations rather than positive co
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support. 39 5.27 None of these meth
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in this context. The Restatement dr
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5.43 A very few consultees explicit
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5.51 The policy of the American Res
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out by an unexpected burden. The co
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5.66 That latter point in particula
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status as an interest in land, and
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terms used at present to create a c
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servient owner has responded to req
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PART 6 A NEW LEGAL INTEREST IN LAND
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(2) The only interests or charges i
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6.21 Obligations that do not touch
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Ancillary rights 6.33 Clause 1(6) o
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his successors in title will [mend
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for a plan to be used in creating a
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6.57 We recommend that where title
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6.68 Legal easements, by contrast,
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Unity of seisin 6.79 We take the vi
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THE ENFORCEABILITY OF LAND OBLIGATI
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6.99 We recommend that where more t
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6.110 This is close to one of the o
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Page 154 and 155: - it would be in the parties’ int
Page 156 and 157: 6.139 But what of the squatter befo
Page 158 and 159: this view. In keeping with the cont
Page 160 and 161: way linked, on breach, to the value
Page 162 and 163: 6.174 However, we need to recommend
Page 164 and 165: the land, the burdens will attach t
Page 166 and 167: Land: Report on Restrictive Covenan
Page 168 and 169: we make no recommendations that wil
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Page 172 and 173: 7.32 Consultees supported that chan
Page 174 and 175: 7.42 It is important for the provis
Page 176 and 177: positive obligations and apportionm
Page 178 and 179: 7.63 We made two provisional propos
Page 180 and 181: 7.74 However, in some instances the
Page 182 and 183: 7.86 In the Consultation Paper we m
Page 184 and 185: 8.7 We recommend that: (1) an easem
Page 186 and 187: 8.21 We recommend that provided tha
Page 188 and 189: 8.34 We recommend that Land Registr
Page 190 and 191: 8.48 We recommend that the limitati
Page 192 and 193: applicant does not object; equally,
Page 194 and 195: 1 Power to impose obligations 2 Con
Page 196 and 197: Law of Property Bill iii 42 Saving
Page 198 and 199: 2 190 Law of Property Bill Part 1
Page 200 and 201: 4 7 Enforcement of obligations 192
Page 204 and 205: 8 Law of Property Bill Part 2 — E
Page 206 and 207: 10 Law of Property Bill Part 2 —
Page 214 and 215: 18 Law of Property Bill Schedule 1
Page 216 and 217: 20 Law of Property Bill Schedule 2
Page 218 and 219: 22 Forestry Act 1967 (c. 10) 210 La
Page 220 and 221: 24 212 Law of Property Bill Schedul
Page 222 and 223: A.7 Easements and profits are gener
Page 224 and 225: COMMENTARY ON CLAUSES PART 1 ATTACH
Page 226 and 227: Clause 2: conversion of future cove
Page 228 and 229: ecause his estate does not give him
Page 230 and 231: (3) Where the Crown has made a gran
Page 232 and 233: without permission” (clause 17(1)
Page 234 and 235: (2) any relevant physical features
Page 236 and 237: that when any of those rights benef
Page 238 and 239: (2) what a restriction means; and (
Page 240 and 241: would be possible for D to make an
Page 242 and 243: (2) land that has been discharged f
Page 244 and 245: the dominant owner, the land obliga
Page 246 and 247: APPENDIX C SAMPLE REGISTERS 238
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244
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X Y Z D.9 That example is simplisti
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X A B Y C D.18 A, B, C and Y are j
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APPENDIX E SECTION 84 OF THE LAW OF
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(3A) On an application to the Upper
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APPENDIX F LIST OF CONSULTEES Richa
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Institute of Legal Executives Wragg
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