The Law Commission Report LC237 – easements and profits

The Law Commission report, LC237, contains a number of recommendations for reform to the law on easements and profits. It also contains a very clear and succinct overview of the law in this area, and we recommend that students read it to gain a good insight into the law and its current defects, as well as proposals for reform. Not all its proposals are considered here, only those which will be of most interest to undergraduates studying land law.

1. Implied and presumed profits à prendre

The report recommends, at para 3.9 that profits should be able to be created only expressly. Implied easements and easements created by prescription are arguably oppressive to servient owners because they involve taking something from the land. Unlike easements, profits are rarely necessary to make dominant land usable.

2. Implied easements (necessity, common intention, Wheeldon v Burrows)

The Law Commission recommended firstly that rules on implying easements should apply equally whether the easement was held to have been implied or reserved. (See 11.4 in the book for an explanation of grant and reservation).

It was decided that the three types of implied easement were confusing and that there should be one test for implying an easement into a transfer, namely that the right was ‘necessary for the reasonable use ‘of the quasi-dominant land. The meaning of this is set out in paragraph 3.45:

• 3.45 We recommend that an easement shall be implied as a term of a disposition where it is necessary for the reasonable use of the land at that date, bearing in mind:
• (1) the use of the land at the time of the grant;
• (2) the presence on the servient land of any relevant physical features;
• (3) any intention for the future use of the land, known to both parties at the time of the grant;
• (4) so far as relevant, the available routes for the easement sought; and
• (5) the potential interference with the servient land or inconvenience to the servient owner.

3. LPA 1925 s.62

The Law Commission recommended that s.62 should no longer operate to transform precarious benefits into legal easements or profits (para 3.64). It was noted that s.62 as it presently operates ‘is a trap for the unwary, as well as being uncertain in its effect and in the extent to which it overlaps with Wheeldon v Burrows.’ Also, it has become standard practice to exclude s.62 from conveyances.

However, s.62 will still operate to upgrade leasehold easements into freehold ones (para 3.69).

4. Acquisition of easements by prescription.

The Law Commission recommended the abolition of all existing methods of prescription and their replacement by a new statutory scheme (para 3.113):

3.123 We recommend that:

• (1) an easement will arise by prescription on completion of 20 years’ continuous qualifying use;
• (2) qualifying use shall be use without force, without stealth and without permission; and
• (3) qualifying use shall not be use which is contrary to the criminal law, unless such use can be rendered lawful by the dispensation of the servient owner.

The new law will contain no special provisions for interruption like those in the Prescription Act 1832. Any interruption, however short, will stop time running.

The Bakewell v Brandwood rule on illegality will continue – i.e. if the landowner could have consented to the use, prescriptive easements can be obtained by long use.

There will be no special rule for rights to light; they will be subject to the same rules as any other easement.

The period for obtaining an easement will not be subject to a ‘next before action’ rule – any period of 20 years will suffice, just as it does now under lost modern grant.

The qualifying use must be carried out by and against a freeholder, as is the case now (para 3.150), and if the freehold owner of the servient land lacks capacity, no easements can be gained by prescription (para 3.168).

Where land is tenanted, it will be a question of fact whether the freehold owner could have known about or prevented the use:

• 3.172 We recommend that use of land which is let shall not amount to qualifying use at any time when the servient freehold owner does not have power to prevent the use while the lease continues, or does not know about it and could not reasonably have discovered it, unless:
• (1) the use began before the lease was granted; and
• (2) at the time when the lease was granted the landlord knew about the use or could reasonably have discovered it.

5. Easements of parking

The Law Commission recommended that the rule should be retained that an easement must not grant exclusive possession. However, there should not be an ‘ouster’ principle – that is, the rule that the servient owner must still have some use left of his land should be abolished:

• 3.209 We recommend that a right to use another’s land in a way that prevents that other from making any reasonable use of it will not for that reason fail to be an easement.

This will make it much easier to grant a right of parking on a small area of land.

6. Extinguishment by abandonment

Extinguishment by long disuse of an easement is very hard to prove. Older cases said that 20 year’s non-use gave rise to a presumption of abandonment, but cases like Ben v Hardinge show that even 175 years of disuse will not be enough if other reasons for non-use can be shown.

The Law Commission recommended that there should be a presumption that 20 years non-use indicates abandonment, whether the easement is registered or not. This rule would also apply to profits.

3.230 We recommend that where an easement or profit has not been used for a continuous period of 20 years, there should be a rebuttable presumption that it has been abandoned.

The presumption can be rebutted by evidence that there were other reasons for the disuse. As the Law Commission said:

• ... we see the introduction of a presumption as the re-opening of a narrow door, but not of floodgates. It will still be for the applicant to prove continuous non-use for a specified number of years; and even then the presumption can be rebutted.(para 3.228).

7. Abolition of the ‘unity of seisin’ rule

Under the current law, someone cannot have an easement over their own land, even if they own two different pieces of land, each registered with its own title. This has two effects: an owner of land who wants to sell part of it to someone else cannot create an easement over it or grant an easement over the part intended to be retained, before the transfer. Also, if any dominant and servient tenement come into common ownership and occupation, any easements are extinguished.

The first effect is particularly trying where land is being developed as a housing estate, as it is tricky to get easements such as drainage and rights of way correctly granted and registered as the land is sold off piece by piece. The second effect can cause problems where one part of the land is mortgaged and the other is not – if the mortgagee had to take possession, the extinguished easements would not revive and this might make the mortgaged land less valuable or even unusable. It is also possible that an easement that is registered as a burden on one of the pieces of land might be proved to have been extinguished by common ownership in the past if the two pieces of land later come into separate ownership and possession again.

Therefore, the Law Commission recommends abolishing the unity of seisin rule for registered land:

• 4.44 We recommend that provided that title to the benefited and burdened land is registered, the fact that they are in common ownership and possession shall not prevent the creation or existence of easements or profits.

8. Express variation or release

The Law Commission recommend that a registered easement or profit should not be able to be varied or released without the register being

Self-test questions

1. Daisy’s neighbour has started to build an extension to his house. The extension adjoins Daisy’s back garden. The foundations for the extension and the new drainage pipes run under Daisy’s garden. Has Daisy any grounds for complaint?

• Answer: Daisy does have grounds for complaint. She is the owner of the land included in her garden, and that land includes not only the surface of the land, but also the subsoil and subterranean space. Authority for this can be found in LPA 1925 s. 205(1)(ix), which states that land includes mines and minerals, which are below the surface. Houses may have cellars, and these form part of the land. Also, in Bocardo v Star Energy [2010] UKSC 35, [2011] 1 AC 380, oil wells drilled far below the surface were held to trespass on the claimant’s land.

• See 1.1.2.1.

2. Mai Ling’s neighbour has just installed a new boiler. The flue extends some 10 cm into Mai Ling’s garden, at a height of about 4 m. Has Mai Ling any grounds for complaint?

• Answer: Yes, Mai Ling does have grounds for complaint. The owner of land owns the airspace above the land ‘to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it‘, per Griffiths J. in Bernstein v. Skyviews [1978] QB 479. This case is similar to the facts in Laiquat v. Majid [2005] EWHC 1305, in which it was held that an extractor fan overhanging a garden at about 4.5m above the ground was a trespass to the airspace.

• See 1.1.2.2.

3. Olu has just bought a house. When he saw the house before buying it, the garden contained a large shed and a number of beautiful plants. The shed and some of the plants were removed before he moved in. Does Olu have any grounds for complaint?

• Answer: Firstly, Olu should examine the contract he entered into for the sale of the house. If it has any provisions about the shed and the plants, then he must read those provisions. It may be that he and the vendor had agreed that the shed and plants could be taken, in which case he would obviously be unable to complain now.
• If there are no such provisions, then Olu will have to establish whether these items are fixtures, which are part of the land, or chattels, which are not. The test is to be found in the leading case of Holland v. Hodgson (1872) LR 7 CP 328, in which a two-part test was established:

• 1. the degree of annexation;
• 2. the purpose of the annexation.
• ‘Annexation’ means attachment to the land.

• Taking the shed first, it may have been built into foundations which would be a strong degree of annexation, or it may have been merely resting by its own weight, perhaps on a concrete base. If the latter is true, the shed is unlikely to be a fixture under the first test. As to the second test, the purpose of bringing the shed onto the land was probably to store things in it. This is unlikely to mean that the shed is a fixture, as sheds are generally fairly temporary in nature. This may well mean that the vendor was within his rights to take the shed.

• Plants are usually part of the land, as they are rooted in it, and therefore strongly attached. They also form part of the landscaping. However, if they were in pots, they might have remained as chattels.

• Therefore, it is more likely that Olu can complain about the plants than the shed, but both depend upon the degree and purpose of annexation.

• See 1.1.3

4. Haminder is walking across Farmer Jones’ field when he sees a golden bracelet half-buried in the soil. He loosens it with his fingers and takes it home to clean it up. Haminder hands the bracelet to the police, but they have handed it back, saying that they cannot trace the owner. Can Haminder keep the bracelet?

• Answer: The answer to this depends upon a number of factors. You will find this answer easier to follow if you look at figure 1.2 in section 1.2.4. Firstly, Haminder should consider whether the bracelet may be treasure within the meaning of the Treasure Act 1996. This is likely if it is at least 300 years old and has a precious metal content of at least 10%. If it may be treasure, Haminder must hand it to the coroner for a decision. If it is held to be treasure, he is likely to receive a reward, but this may not apply if he was trespassing on the field.

• If the bracelet is not treasure, we need to decide whether it was found in the land or on the surface of the land. If it was buried in the land, it will belong to Farmer Jones - AG of the Duchy of Lancaster v. Overton (Farms) Ltd [1981] Ch 333. This may be difficult to decide here, as the bracelet was half-buried, and had to be loosened by Haminder. How deep was it in the land?

• If it was on the surface of the land, we need to know whether Haminder was a trespasser. If he had no right to be there, the bracelet will belong to Farmer Jones. If he was there lawfully, for example on a footpath, the bracelet will belong to Haminder, unless Farmer Jones can show ‘a manifest intention to exercise control over the [land] and all things which might be in it’ - Parker v. British Airways Board [1982] 1 All ER 834. This could be difficult to show if the field has a public footpath running across it, so Haminder may have the best claim to the bracelet.

• See 1.2

Examination questions

1. Abdul owns a metal detector, which he enjoys using to find objects buried below the surface of land. Last week, he went out with his metal detector onto Bill’s farm. Bill was a tenant farmer, leasing his farm from Cuthbert.

• Abdul had seen Bill a few days earlier and asked if he could look for ‘buried treasure’ in Bill’s fields. Bill had laughed and said: “Okay, but I doubt you’ll find anything there – I plough it up pretty regularly.”

• In fact, Abdul found a cache of metal objects, which turned out to be silver goblets and arm-rings, dating from Saxon times. They have been valued at £250,000. He also found a Rolex watch lying on the surface of the field. No one knows who lost or buried any of the items.

• Advise Abdul whether he can lawfully keep these items and, if not, to whom they belong.

• Answer: This is a question on objects lost on or hidden in land. You will find this answer easier to follow if you look at figure 1.2 in section 1.2.4.

• First of all, consider the cache of Saxon arm-rings and goblets. They will be over 300 years old and presumably will contain at least 10% silver. This means that they will be subject to the Treasure Act 1996 (TA 1996 s.1). Abdul must declare his find to the Coroner for Treasure within 14 days (TA 1996 s.8) as ownership of treasure normally vests in the Crown (TA 1996 s.4). If Abdul does not do this, he will be guilty of a criminal offence. If he declares it as required, a reward may be payable to the landowner or Abdul, or both of them. The coroner will follow the process in the Treasure Act 1996 Code of Practice (2nd Revision). This Code sets out the division of the reward payable between the finder and the landowner. It starts with the presump¬tion that the reward is to be split 50/ 50, but an agreement between the finder and landowner as to the split may be observed. If the finder is a trespasser or has committed an offence related to finding, or dealing with, the treasure (such as not declaring it in a timely way to the Coroner), his or her reward may be reduced or refused altogether.

• Abdul is not a trespasser, as Bill had given him permission to be on the land, so it seems likely that if he declares the objects to the coroner, he will receive 50% of the reward, as they do not seem to have discussed any different split.

• Turning to the Rolex watch, this seems to have been found on the surface of the field. Abdul must take reasonable steps to find the true owner of the Rolex watch, as that person has the best claim to it. If the true owner cannot be traced, objects found on the surface of the land may belong either to the finder or to the occupier of the land. The lost object can be claimed by the occupier only if a manifest intention to control the land can be shown: Parker v. British Airways Board [1982] 1 All ER 834. Abdul was lawfully on the field, and not a trespasser. However, it is unclear how much control Bill had of the field. It seems likely that the watch might belong to Abdul, unless Bill can demonstrate a ‘manifest intention to exercise control over the [field] and all things which might be in it’.

2. “As a matter of legal definition, ‘land’ is both the physical asset and the rights which the owner or others may enjoy in or over it.” (M. Dixon, Principles of Land Law, 8th ed.).

• Discuss.

• Answer: The best starting point here is with the definition of land in LPA 1925 s.205(1)(ix):

• ‘Land’ includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land;

• From this definition, it can be seen that land includes mines and minerals, whether they are owned by the owner of the surface of the land or owned separately from it. This illustrates a very important fact about land, which is that land is three- dimensional. There is the surface of the land, the ground beneath the surface, and the airspace above. Different people can own different strata (or levels) of land. However, different people can own different strata of the land – for example, one person may own the first floor and another the ground floor. Others may have rights in the land – for example, certain minerals do not belong to the landowner and belong instead to the state. Gold and silver belong to the Crown as of right— Case of Mines (1568) 1 Plowd 310. The Crown is also entitled to oil, petroleum, coal, and natural gas (including shale gas obtained by fracturing the land or ‘fracking’) by statutory right— see the Coal Industry Act 1994 and the Petroleum Act 1998.

• In addition, the Crown has the right to treasure found in the land under the Treasure Act 2002, which replaced the common law right of the Crown to treasure trove.

• Fixtures form part of the land, but chattels do not. In Holland v. Hodgson (1872) LR 7 CP 328, the question arose whether looms installed in a factory formed part of that factory— that is, were they part of the land?

• Blackburn J said that whether an object is a fixture or a chattel depends on two tests:

• 1. the degree of annexation;
• 2. the purpose of the annexation.

• In explaining the test, Blackburn J went on to say that articles that are attached to the land only by their weight are not usually considered to be part of the land, unless they were actually intended to form part of the land.

• On the other hand, an object fixed to the land— however lightly— is initially considered to be part of the land, unless circumstances indicate that it was always intended to remain a chattel. In this case, it is for the person claiming that the object is a chattel to prove it.

• In the leading case Elitestone v. Morris [1997] 2 All ER 513 Lord Lloyd of Berwick said that he thought the terms ‘fixture’ and ‘chattel’ were confusing ones in the context of a house or building. He preferred a different approach, using a threefold classification:

• An object which is brought onto land may be classified under one of three broad heads. It may be (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land.

• The chalet that was the object in question in this case fell into category (c)— part and parcel of the land itself— as do most buildings. It appears that, if an object cannot be removed from the land except by destruction, it has become part and parcel of the land. This case was followed in Royal Parks Ltd v. Bluebird Boats Ltd [2021] EWCH 2278 (TCC) in which it was held that the drawings and design of a boathouse and jetties showed that they were an integral permanent structure in Hyde Park.

• In Mew v. Tristmire [2011] EWCA Civ 912, it was clarified that houseboats (as opposed to chalets) are inherently moveable chattels, and that this classification does not change if a chattel grows so fragile that it can no longer be removed without damage.

• Even heavy objects, such as statues, are unlikely to become part of the land unless they were designed to go into a particular place – see London Borough of Tower Hamlets v. London Borough of Bromley [2015] EWCH 1954 (Ch).

• LPA 1925 s. 204(1)(ix) also refers to ‘incorporeal hereditaments’. ‘Incorporeal’ means things without a physical form (intangible property), such as rights to receive rent from the land, rights of way and rights of light. The right to receive rent may arise from an old freehold rentcharge, or may arise from the freehold owner renting out all or part of the land to another by granting a lease. This means that both the freeholder and the leaseholder will have rights in the land – the lessee has the right to exclusive possession for a term at a rent, and this generally gives rise to an estate in land.

• Rights of way and rights of light are examples of easements, and these are rights enjoyed by others over land of another. They are valuable, and modern living would be impossible without them.

• As you continue to study land law, you are likely to find even more examples you could add to this answer!