Easements, Covenants and Profits à Prendre

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Simplifying the restrictive covenant regime so people understand the rights on their land. The Government has said it will bring forward proposals in a draft Law of Property Bill.

Download the report

Download the report summary

The problem

There is a complex web of rights and obligations that link different parcels of land, and their owners, together. Three of those are easements, profits à prendre and covenants.

Easements are rights enjoyed by a landowner over another person’s land. A positive easement (such as a right of way) involves a landowner going onto or making use of something in or on a neighbour’s land.

Profits à prendre are rights to take natural products from someone else’s land, such as grass for grazing, or fish.

Covenants are a type of contractual promise concerning land, some of which can be enforced against future owners of the land, rather than just against the person who made the promise.

Over three quarters of freehold properties are affected by one or more of these rights. But the law governing them is ancient, complex and causing problems for many legal practitioners and property owners alike.

The project

The project aimed to modernise and simplify the law, removing anomalies, inconsistencies and unnecessary complications where they exist.

We published our final report on 8 June 2011. This followed our consultation, in response to which we received a large number of detailed responses.

We published, at the same time as the report, a comprehensive analysis of those responses, as well as an impact assessment.

We subsequently completed a project on rights to light, a specific type of easement, in 2014.

Our recommendations

Our recommendations, and a draft Law of Property Bill, are contained in the report.

Some of the reforms we recommend would:

• make it possible for the benefit and burden of positive obligations to be enforced by and against subsequent owners;
• simplify and make clearer the rules relating to the acquisition of easements by prescription (or long use of land) and implication, as well as the termination of easements by abandonment;
• give greater flexibility to developers to establish the webs of rights and obligations that allow modern estates to function;
• facilitate the creation of easements that allow a substantial use of land by the benefiting owner (for example, rights to park a car); and
• expand the jurisdiction of the Lands Chamber of the Upper Tribunal to allow for the discharge and modification of easements and profits.

Result

Government announced in the Housing White Paper, on 7 February 2017, that:

“The Government also intends to simplify the current restrictive covenant regime by implementing the Law Commission’s recommendations for reform and will publish a draft Bill for consultation as announced in the Queen’s Speech.”

This supplemented the earlier announcement on 18 May 2016 that Government intended to bring forward proposals in a draft Law of Property Bill to respond to the Law Commission’s recommendations.

We are assisting Government with the preparation of that draft Bill.