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 updated, as this could lead to confusion when the land is sold. The original easement would still appear on the register, yet would in reality have been released or varied. The release or variation should therefore be a registrable disposition, just like express creation of an easement or profit:

• 4.57 We recommend that the express variation or release of a registered appurtenant interest shall be a registrable disposition pursuant to section 27 of the Land Registration Act 2002.

9. Extension of the jurisdiction of the Lands Chamber of the Upper Tribunal

The Law Commission recommended that the Lands Chamber of the Upper tribunal be able to discharge or modify easements as well as covenants under LPA 1925 s.84.

• 7.49 We recommend that the jurisdiction to make declarations, currently embodied in section 84(2) of the Law of Property Act 1925, be extended to encompass easements created (expressly or otherwise) after reform, profits created after reform...

This would therefore allow obsolete easements and profits to be removed, but only if they were created after these reforms came into effect.