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

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vi Paragraph Page (7) The termination of the estate to which an interest is appurtenant 3.232 74 The decision in Wall v Collins 3.232 74 Reactions to Wall v Collins 3.242 77 Responses to our consultation 3.244 77 Our recommendation 3.251 79 PART 4: REFORMS FOR REGISTERED TITLES 83 Introduction 4.1 83 Section 58 of the Land Registration Act 2002: a clarification 4.11 84 The “unity of seisin” rule 4.19 85 Land Registry practice and development plans 4.25 87 Mortgages of part 4.34 89 Land that falls into common ownership 4.39 89 Consultees’ responses 4.41 90 Our recommendation 4.44 90 The express release of registered interests 4.52 92 The use of short-forms for the creation of easements 4.59 93 PART 5: COVENANTS: THE CASE FOR REFORM 95 Introduction 5.1 95 Problems in the law relating to covenants 5.4 96 Positive obligations: the case for reform 5.21 100 The practical problems connected with positive obligations 5.21 100 The arguments for and against reform 5.29 102 Safeguards to accompany positive obligations 5.44 106 Recommendations for the reform of freehold covenants 5.63 111 Additional details 5.77 114 Land obligations in unregistered land 5.78 114
vii Paragraph Page The future for the rule in Tulk v Moxhay and the current law of restrictive covenants 5.82 115 Land obligations and commonhold 5.90 117 Land obligations, negative easements and easements of fencing 5.92 117 PART 6: A NEW LEGAL INTEREST IN LAND 120 Introduction 6.1 120 Land obligations in the draft Bill 6.7 121 A new power for estate owners 6.7 121 The exercise of the power: creating an appurtenant right 6.14 122 The nature of a land obligation 6.22 124 Ancillary rights 6.33 126 Future freehold covenants 6.37 126 The creation and registration of land obligations 6.46 129 The requirements for the creation of legal and equitable interests in land 6.46 129 Land obligations in unregistered land 6.54 131 Land obligations to be created only expressly 6.59 132 Further provisions for registered title 6.63 133 Consequential provisions about registration 6.64 133 Recommendations derived from Part 4 above 6.75 135 The enforceability of land obligations 6.90 138 Transmission of the benefit of a land obligation 6.92 138 Transmission of the burden of a land obligation 6.101 140 Transmission of part of the burdened land 6.118 143 Adverse possession 6.134 147 Liability and remedies for breach of land obligations 6.146 149 The cause of action 6.147 149 Liability for breach 6.150 149
Page 1: The Law Commission (LAW COM No 327)
Page 4 and 5: MAKING LAND WORK: EASEMENTS, COVENA
Page 8 and 9: viii Paragraph Page Remedies for br
Page 10 and 11: covenant not to build upon it, for
Page 12 and 13: This is an important area with sign
Page 14 and 15: 7 we recommend that that jurisdicti
Page 16 and 17: HUMAN RIGHTS 1.32 In a project conc
Page 18 and 19: of this Report; they do not general
Page 20 and 21: (b) A rentcharge in possession issu
Page 22 and 23: Many further examples could be give
Page 24 and 25: 2.25 Second, the easement must acco
Page 26 and 27: 2.34 The profits with which we are
Page 28 and 29: 2.42 A restrictive covenant is not
Page 30 and 31: 2.53 In the Consultation Paper we m
Page 32 and 33: 2.62 Rights that do not qualify for
Page 34 and 35: CONCLUSION 2.72 In this Part we hav
Page 36 and 37: more. 3.6 Consultees were keen to r
Page 38 and 39: implied. 14 3.14 The necessity must
Page 40 and 41: Further bases for implication 3.22
Page 42 and 43: to a single general principle … i
Page 44 and 45: any test for implication must be ap
Page 46 and 47: (1) A conveyance of land shall be d
Page 48 and 49: intention of the “grantor”. Bec
Page 50 and 51: from the case law; a claimant may c
Page 52 and 53: 3.82 We have heard calls throughout
Page 54 and 55: landowner’s objections or protest
Page 56 and 57:
y lost modern grant. The introducti
Page 58 and 59:
3.108 Under the 1832 Act a tenant c
Page 60 and 61:
period, and imposes exactly the sam
Page 62 and 63:
criminal. 132 3.130 Note that the s
Page 64 and 65:
egistration principles. 140 3.139 N
Page 66 and 67:
elaxation of the restriction. We we
Page 68 and 69:
to make the acquisition of a right
Page 70 and 71:
simple owner. 171 When land is let,
Page 72 and 73:
than requiring people to do battle
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And that was the difficulty with th
Page 76 and 77:
3.200 Clearly if such arrangements
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that the servient owner can access
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Abandonment is not, we think, to be
Page 82 and 83:
3.230 We recommend that where an ea
Page 84 and 85:
3.239 However, the Court of Appeal
Page 86 and 87:
We agree that where an easement is
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3.253 Yet we hear the practical con
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and so our clause enables an electi
Page 92 and 93:
4.6 Schedules 4 and 8 to the Land R
Page 94 and 95:
ecause of the antiquity of those in
Page 96 and 97:
will reach Land Registry - and the
Page 98 and 99:
into one title, the easement is lik
Page 100 and 101:
4.50 That reform is to apply to int
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easement being created. Short-form
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PROBLEMS IN THE LAW RELATING TO COV
Page 106 and 107:
e registered and there would then b
Page 108 and 109:
obligations rather than positive co
Page 110 and 111:
support. 39 5.27 None of these meth
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in this context. The Restatement dr
Page 114 and 115:
5.43 A very few consultees explicit
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5.51 The policy of the American Res
Page 118 and 119:
out by an unexpected burden. The co
Page 120 and 121:
5.66 That latter point in particula
Page 122 and 123:
status as an interest in land, and
Page 124 and 125:
terms used at present to create a c
Page 126 and 127:
servient owner has responded to req
Page 128 and 129:
PART 6 A NEW LEGAL INTEREST IN LAND
Page 130 and 131:
(2) The only interests or charges i
Page 132 and 133:
6.21 Obligations that do not touch
Page 134 and 135:
Ancillary rights 6.33 Clause 1(6) o
Page 136 and 137:
his successors in title will [mend
Page 138 and 139:
for a plan to be used in creating a
Page 140 and 141:
6.57 We recommend that where title
Page 142 and 143:
6.68 Legal easements, by contrast,
Page 144 and 145:
Unity of seisin 6.79 We take the vi
Page 146 and 147:
THE ENFORCEABILITY OF LAND OBLIGATI
Page 148 and 149:
6.99 We recommend that where more t
Page 150 and 151:
6.110 This is close to one of the o
Page 152 and 153:
(1) where the proprietor of one par
Page 154 and 155:
- it would be in the parties’ int
Page 156 and 157:
6.139 But what of the squatter befo
Page 158 and 159:
this view. In keeping with the cont
Page 160 and 161:
way linked, on breach, to the value
Page 162 and 163:
6.174 However, we need to recommend
Page 164 and 165:
the land, the burdens will attach t
Page 166 and 167:
Land: Report on Restrictive Covenan
Page 168 and 169:
we make no recommendations that wil
Page 170 and 171:
the conclusion that the Lands Chamb
Page 172 and 173:
7.32 Consultees supported that chan
Page 174 and 175:
7.42 It is important for the provis
Page 176 and 177:
positive obligations and apportionm
Page 178 and 179:
7.63 We made two provisional propos
Page 180 and 181:
7.74 However, in some instances the
Page 182 and 183:
7.86 In the Consultation Paper we m
Page 184 and 185:
8.7 We recommend that: (1) an easem
Page 186 and 187:
8.21 We recommend that provided tha
Page 188 and 189:
8.34 We recommend that Land Registr
Page 190 and 191:
8.48 We recommend that the limitati
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applicant does not object; equally,
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1 Power to impose obligations 2 Con
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Law of Property Bill iii 42 Saving
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2 190 Law of Property Bill Part 1
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4 7 Enforcement of obligations 192
Page 202 and 203:
6 Interpretation 194 Law of Propert
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8 Law of Property Bill Part 2 — E
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10 Law of Property Bill Part 2 —
Page 208 and 209:
Page 210 and 211:
Page 212 and 213:
Page 214 and 215:
18 Law of Property Bill Schedule 1
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20 Law of Property Bill Schedule 2
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22 Forestry Act 1967 (c. 10) 210 La
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24 212 Law of Property Bill Schedul
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A.7 Easements and profits are gener
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COMMENTARY ON CLAUSES PART 1 ATTACH
Page 226 and 227:
Clause 2: conversion of future cove
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ecause his estate does not give him
Page 230 and 231:
(3) Where the Crown has made a gran
Page 232 and 233:
without permission” (clause 17(1)
Page 234 and 235:
(2) any relevant physical features
Page 236 and 237:
that when any of those rights benef
Page 238 and 239:
(2) what a restriction means; and (
Page 240 and 241:
would be possible for D to make an
Page 242 and 243:
(2) land that has been discharged f
Page 244 and 245:
the dominant owner, the land obliga
Page 246 and 247:
APPENDIX C SAMPLE REGISTERS 238
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240
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242
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244
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X Y Z D.9 That example is simplisti
Page 256 and 257:
X A B Y C D.18 A, B, C and Y are j
Page 258 and 259:
APPENDIX E SECTION 84 OF THE LAW OF
Page 260 and 261:
(3A) On an application to the Upper
Page 262 and 263:
APPENDIX F LIST OF CONSULTEES Richa
Page 264 and 265:
Institute of Legal Executives Wragg
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