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

THE LAW COMMISSION
MAKING LAND WORK: EASEMENTS,
COVENANTS AND PROFITS À PRENDRE
To the Right Honourable Kenneth Clarke QC, MP, Lord Chancellor and Secretary
of State for Justice
PART 1
EASEMENTS, COVENANTS AND PROFITS À
PRENDRE: INTRODUCTION
THE SCOPE AND IMPACT OF THE PROJECT
1.1 We live on a small island. Land is in great demand; it provides homes and places
of business, security for debt, space for recreation, a source of food and
minerals; the list is endless. Ownership of land is important and valuable. In this
project we are concerned not with the ownership of land, but with the complex
web of rights and obligations that link different parcels of land, and their owners,
together. Some are security rights – principally mortgages – and those are not
part of this project. This project is about easements, profits à prendre and
covenants.
1.2 These three types of rights can be shortly described, but the law that relates to
them is vast. Easements are, in general, rights to do something on someone
else’s land; private rights of way are the most obvious examples. 1 Profits à
prendre – which from here onwards we call simply “profits” – are rights to take
something from someone else’s land, such as grass for grazing, or fish. Freehold
covenants 2 are a type of contractual promise which, as we shall explain in more
detail later, behave like property rights because some of them can be enforced
against future owners of the land, rather than just against the person who made
the contractual promise.
1.3 An easement, profit or covenant can be thought of as, on the one hand, imposing
a burden on a piece of land. Anyone who buys land that is subject to a drainage
easement, say, in favour of a neighbour, has to accept the burden of that
easement; land lawyers say that the right binds the land and that the purchaser
cannot take the land free from it. On the other hand, the right gives a benefit to
the right-holder, who will in most cases be another landowner.
1.4 Over three quarters of freehold properties are affected by one or more of these
rights. 3 They can be very valuable. Land that is burdened with a restrictive
1 Public rights of way are not easements and fall outside the scope of this project.
2 The covenants with which the project is concerned are freehold, not leasehold; leasehold
covenants operate under a wholly different legal regime. See, para 5.3 n 4 below.
3 Easements, Covenants and Profits à Prendre (2008) Law Commission Consultation Paper
No 186 (we refer to this document as the “Consultation Paper” in this Report), para 1.3.
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