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

easement until it is registered. 15 An equitable interest may also arise where the
grantor of the interest had only an equitable estate; so someone who has only an
equitable fee simple, such as B above, can only grant an equitable lease.
2.14 However, some interests can only ever be equitable. While an easement may be
legal or equitable, depending on its characteristics and the way it was created, a
restrictive covenant cannot exist as a legal interest in land; it will always be an
equitable interest.
2.15 Such, then, are the building blocks of land law: the legal and equitable estates
and interests. Next we look at the characteristics of the interests that form the
subject matter of this project.
EASEMENTS, COVENANTS AND PROFITS A PRENDRE
2.16 Easements, covenants and profits are all rights that one person may hold in
someone else’s land. They are linked by a functional similarity in that they are all
rights either to do something on someone else’s land or to control the way that
the land is used by its owner. They are sometimes described as “third party
rights”; the civil law systems label them iures in re aliena. 16 It would be helpful if
we had one word to describe the three, but English law has not provided one; it
would be difficult to follow American usage and refer to them all as servitudes,
since Scotland, and civil law countries generally, use that term to describe rights
that correspond to easements and not to covenants. We can give a cumbersome
description and say that they are non-possessory, non-security rights in land.
2.17 In this section of this Part we look at the essential characteristics of these three
rights, by way of background to the reforms we propose later in this Report. We
mention some proposals made in the Consultation Paper which we have decided
not to take further, giving reasons briefly here and in more detail in the Analysis
of Responses. Finally as a postscript to this section we explain the nature of
estate rentcharges, and explain why they are relevant to our project.
Easements
2.18 Easements are nowhere defined in English law. Most types of easement can be
described functionally, as rights to do something on another’s land. Megarry and
Wade introduces them by saying:
The common law recognised a limited number of rights which one
landowner could acquire over the land of another; and these rights
were called easements and profits. Examples of easements are rights
of way, rights of light and rights of water. 17
15 It is possible, but very unlikely, that such an equitable easement might itself be protected
by notice on the register of the burdened land, so that it will be enforceable against a
purchaser of that land; see paras 2.61 and 2.62 below.
16 Roughly translated as “rights in the property of others”.
17 Megarry and Wade, para 27-001.
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