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

2.29 Finally, the easement must be “capable of forming the subject matter of a grant”.
This requirement encompasses a number of ideas; for example, that the
easement must be clear and certain, and must not be a right merely for
amusement. 36 The requirement therefore functions as a control upon the range of
possible easements. Another element of it is the rule that an easement must not
confer a right so extensive that it confers exclusive possession on the user 37 or
deprives the servient owner of almost all use of the land. That rule has generated
some pressure in the context of parking easements, and we discuss it in Part 3.
2.30 We go on in Parts 3 and 4 to recommend some changes that will make the law
relating to easements more straightforward and flexible, but which will leave their
fundamental nature intact.
Profits
2.31 Profits are, again, not defined in the law. They are generally rights to take
something from someone else’s land; hunting and fishing rights are obvious
examples, as are grazing rights. 38
2.32 Profits may either be “several” (also called “sole”) or “in common”. A several profit
excludes the servient owner; so if a several fishing right is granted to X by Y over
Y’s land, Y can no longer fish there. Profits in common do not exclude the
servient owner.
2.33 Our project is concerned mainly with several profits. Those profits that are
outside its scope are rights which are “rights of common” for the purposes of the
Commons Act 2006. The Consultation Paper noted that profits appendant and
profits pur cause de vicinage (which is a customary right that allows animals to
pass from one plot of land to an adjoining plot) fall outside of the scope of the
project. 39 This remains the case, but no special mention is made of them in the
draft Bill as profits appendant fall within “rights of common” under the Commons
Act 2006. There is some debate as to whether profits pur cause de vicinage are
properly characterised as profits. 40 If they are, then they are similarly dealt with by
the Commons Act 2006 and if they are not, they are not affected by our project.
36
For example, a right to use somebody else’s land for picnics. See Gray and Gray, para
5.1.37.
37 See para 2.3 above.
38 Megarry and Wade, para 27-001.
39 Consultation Paper, paras 6.12 and 6.13.
40 Contrast N Ubhi and B Denyer-Green, Law of Commons and of Town and Village Greens
(2nd ed 2006) para 4.3.3 with Megarry and Wade, para 27-057.
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