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

provisions that would enable positive obligations to run with land, it should no
longer be possible to create new estate rentcharges. 59 A majority of consultees
agreed with that provisional proposal, but comments were made that convinced
us that there remains a role for estate rentcharges in some specialist contexts.
Trowers and Hamlins pointed out that they are:
… essential for grant making bodies to ensure that the land in respect
of which grant is made does actually get used for the purposes of the
grant and in the agreed manner.
2.47 In other words, estate rentcharges can be used to enforce requirements imposed
by grant-making bodies that do not hold any estate in land to which the benefit of
a covenant can attach. The requirements may have a social function, for
example, that the land be used for social housing, or they may ensure the
retention of original or period features when a grant is made for restoration.
These are important arrangements, and the estate rentcharge has proved to be
an effective tool for supporting them.
2.48 We take the view that this is a valid reason for the retention of estate rentcharges
for use in these special and unusual cases. We anticipate that the enactment of
our recommendations for land obligations will mean that they are needed only
occasionally where a positive obligation has to be imposed by a specialist body
that does not hold land that can meet the “touch and concern” requirement. We
explore the point in more detail at paragraphs 8.125 to 8.139 of the Analysis of
Reponses.
2.49 The other legal interests listed in section 1(2) of the Law of Property Act 1925 are
not relevant to this project; nor are the rest of the equitable interests referred to in
section 1(3).
THE CREATION AND REGISTRATION OF EASEMENTS, PROFITS AND
COVENANTS
2.50 So how do easements, profits and covenants come into being?
2.51 Ideally, they are created expressly. We say “ideally” because a document that
effects an express transaction is likely to be the most accurate way to determine
what has been created. Easements and profits can, under the current law, also
be created by implication and by prescription, as we have mentioned above, and
we say more about that in Part 3.
2.52 A legal easement or profit can only be created expressly by deed. 60 Although
restrictive covenants cannot take effect as legal interests, in fact most will be
created by deed because they will have been set out in a transfer of land.
59 Consultation Paper, para 8.119.
60 LPA 1925, s 52.
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