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

or become upgraded. But the parties may give no thought to the matter, and we
think that in this context in particular the section may be a helpful protection
against inadvertence.
3.67 It is even more useful where a transaction is not consensual, in particular
leasehold enfranchisement. A group of statutory provisions provide, in similar
words, that conveyances or leases that effect such transactions “shall not
exclude or restrict the general words implied under section 62 of the Law of
Property Act 1925”. 63 The objective of these sections is to ensure that in these
cases where the transferor or lessor has had the transaction forced upon him or
her, the transferee or lessee takes with the new estate the ancillary rights
formerly appurtenant to the lesser interest, made as durable as the estate now
acquired. Without the compulsion of these provisions, an unwilling seller might
well refuse to grant as freehold easements the rights that were formerly enjoyed
by the tenant as leasehold easements.
3.68 So the upgrading effect of section 62 remains, so far as easements are
concerned; but we do not think that the section should continue to operate to
upgrade leasehold profits to freehold profits. Such cases are likely to be
extremely rare, and we take the view that profits should be created expressly, by
deliberately drafted wording, or not at all.
3.69 We recommend that section 62 of the Law of Property Act 1925 should
continue to be able to convert easements, but not profits, from leasehold to
freehold interests.
3.70 That recommendation is put into effect by clause 21(1)(b) of the draft Bill.
(4) THE ACQUISITION OF EASEMENTS BY PRESCRIPTION
Introduction
3.71 Prescription is another way in which an easement or profit can come into
existence even though there has been no express grant. If a landowner makes
use of a neighbour’s land for a long period without permission, openly and
peaceably, in a way that could amount to an easement, the law of prescription
may create an easement, appurtenant to the user’s freehold estate in land. A
profit may currently be created in the same way, but we have recommended that
that should not be the case for the future. 64
3.72 The law of prescription is ancient, with roots in the medieval period and analogies
with Roman law. 65 Like the law relating to adverse possession, it legitimises
trespass, although its legal foundations are not the same. 66 It is complex and
consists of a number of different sets of rules, some statutory and some arising
63 The provisions we have identified are: Leasehold Reform Act 1967, s 10(1); Housing Act
1985, sch 6, para 1; and Leasehold Reform, Housing and Urban Development Act 1993,
sch 7, para 2 and sch 9, para 9.
64 See para 3.9 above.
65 See J Getzler, “Roman and English Prescription for Incorporeal Property” in J Getzler (ed),
Rationalising Property, Equity and Trusts: Essays in Honour of Edward Burn (2003) p 281.
66 See Megarry and Wade, para 28-034.
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