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

PART 3
REFORM OF THE LAW OF EASEMENTS AND
PROFITS
INTRODUCTION
3.1 In this Part we are concerned with reform to, and refinement of, the current law
relating to easements and profits. Of the three interests with which our project is
concerned, these are the ones that can at present exist as legal interests in land,
title to which can be registered. They are of great antiquity, and for the most part
our recommendations would simplify law which has become too complex over
decades and even centuries.
3.2 This Part addresses the following topics:
(1) the creation of profits;
(2) the implication of easements;
(3) section 62 of the Law of Property Act 1925;
(4) the acquisition of easements by prescription;
(5) easements that confer the right to extensive use (in particular, parking);
(6) the extinguishment of easements and profits by abandonment; and
(7) the termination of the estate to which an interest is appurtenant.
(1) THE CREATION OF PROFITS
3.3 As we noted in Part 2, ideally (for the sake of clarity) interests in land are created
expressly. Express words are the most reliable indicator of precisely what the
parties were creating. However, both easements and profits can also be created
by implication and prescription.
3.4 An easement or profit may be implied in a transaction where there is no express
grant or reservation, but there is some other basis – rooted in the existing use of
the land, the parties’ intentions, or some degree of necessity – on which it can be
said that in some sense there must or should have been a grant or reservation. 1
3.5 Prescription is the acquisition of a right by long use. 2 A claimant who behaves,
over a long period, as if he or she had an easement or profit – in circumstances
where the owner of the relevant land is aware of what is happening and does not
take action – acquires an easement or profit, the scope of which is determined by
the behaviour by which it was acquired. For example, if X walks across Y’s land
over a long period, and Y is aware of that behaviour and does nothing, X will
acquire an easement giving him the legal right to walk across Y’s land but nothing
1 See Gale on Easements, para 3-17 and following.
2 See Gale on Easements, ch 4.
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