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Easements, Covenants and Profits à Prendre Consultation Analysis Consultation Paper No 186 (Consultation Analysis) 8 June 2011 MAKING LAND WORK: EASEMENTS, COVENANTS AND PROFITS À PRENDRE CONSULTATION ANALYSIS This document analyses the responses of consultees to the Law Commission’s Consultation Paper, Easements, Covenants and Profits à Prendre (Law Com Consultation Paper No 186). This analysis of responses is designed to be read in conjunction with the Law Commission’s Report, Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327), available at http://www.justice.gov.uk/lawcommission/easements.htm. CONTENTS Page Part 1: Introduction 2 Part 3: Characteristics of easements 6 Part 4: Creation of easements 21 Part 5: Extinguishment of easements 84 Part 6: Profits à prendre 102 Part 7: Covenants: the case for reform 107 Part 8: Land Obligations: characteristics and creation 119 Part 9: Land Obligations: enforceability 165 Part 10: Land Obligations: variation or extinguishment 191 Part 11: Land Obligations: relationship with commonhold 205 Part 12: Land Obligations: supplementary provisions 208 Part 13: Transitional arrangements and the problem of obsolete restrictive covenants 214 Part 14: Section 84 of the Law of Property Act 1925: discharge and modification 222 Part 15: Maintaining the distinction between easements, profits and Land Obligations 253 1 PART 1 INTRODUCTION We would welcome the views of consultees on the human rights implications of the provisional proposals described in this paper. [paragraphs 1.29 and 16.2] 1.1 26 consultees replied to this question, and most had no misgivings about the human rights implications of our proposals. 1.2 Following the enactment of the Human Rights Act 1998, all domestic legislation must be compliant with the rights enunciated in the European Convention on Human Rights and Fundamental Freedoms. Of these rights, two are most likely to be in issue in the context of this project. 1.3 The most pertinent is Article 1 of the First Protocol to the Convention, which states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Although the second part of this Article does allow the state to intervene in order to control the exercise of property rights, the European Court of Human Rights has developed a “fair balance” test which must be met in order to justify any such intervention. This broadly requires that a property owner should not be not subject to an “individual and excessive burden” which should instead have been shared by the affected community, and that measures are proportionate to the aims sought. 1.4 In addition, the European Convention on Human Rights also guarantees procedural rights, which are found in Article 6. That article states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2 This article has to be complied with in respect of any recommendations we make which would have procedural implications. We have had it in mind when formulating our recommendations for reform of the jurisdiction of the Lands Chamber of the Upper Tribunal. The responses 1.5 A number of consultees stated either that our proposals raised no human rights issues, or that they were human rights compliant. For instance, Jeffrey Shaw (Nether Edge Law) said: I do not believe that there are any human rights implications. In fact, the position would be considerably improved in that context by the certainty and clarity that modernised statutory provisions bring to easements and covenants. In a similar vein, the Council for Licensed Conveyancers stated that: The CLC believes that the human rights implications have been adequately considered by the Commission in Part 13 and agree with its conclusions. 1.6 A few consultees felt that certain proposals would also have a positive effect on human rights by adding certainty to the law. Dr Martin Dixon (Queens’ College, University of Cambridge) commented that: In so far as the law of prescription might be clarified, this could have a positive human rights impact, making it more certain when an owner of land might find his/her ownership compromised through use by another. 1.7 On the other hand, a number of consultees identified potential issues. Gregory Hill (Barrister, Ten Old Square Chambers) stated that, whilst he “would expect sensible reform applicable to future transactions to be within ‘the margin of appreciation’”, he could conceive that: Any root-and-branch reform of the law applicable to existing restrictive covenants would engage Protocol 1 Article 1 if it automatically deprived owners with the benefit of existing covenants of the ability to enforce them; and since one of the main defects of that branch of the law is the difficulty of tracing “who has the benefit” (so that those who believe they may be covenant beneficiaries only bestir themselves when an infringing development is being proposed), it seems eminently possible that any such claims under article 1 would be capable of “coming out of the woodwork” for decades or even centuries. 1.8 Trowers & Hamlins had a more specific concern: 3 We are not convinced that the balance between the rights of those who own corporeal property subject to incorporeal property in it and those who own incorporeal property have been fairly struck, and find it difficult to see why the rights of owners of the former should be preferred over the latter. We think that the law should afford equal protection to the property owner regardless of whether the extent of his property is limited by incorporeal rights or is itself incorporeal. 1.9 Additional registration requirements were also identified as potentially creating human rights issues. Dr Martin Dixon (Queens’ College, University of Cambridge) said: It is difficult to envisage how reform could have a negative impact in terms of human rights, unless the proposals resulted in existing owners of dominant titles losing their easements/profits through a disproportionate and retrospective obligation to (say) register an existing easement where no such obligation currently exists. Conclusion 1.10 We have had human rights issues in mind when formulating our recommendations, and have been alive to consultees’ concerns. We have approached the subject of reforming existing restrictive covenants with particular care. We have avoided making recommendations with retrospective effect, and have given particular attention to the need to ensure that existing rights are not jeopardised and that balances already struck in the law are not disturbed. Although the introduction of land obligations as legal interests in lands (outlined in Part 6 of the Report) will create additional registration requirements on parties to the transaction on their creation, these will not affect any existing rights. 1.11 Most consultees’ comments about human rights implications were expressed in the context of specific questions. We address these questions when they arise in the course of this Analysis. 4 We would welcome any information or views from consultees about the likely impact of our provisional proposals. [paragraphs 1.34 and 16.3] 1.12 We have received a great deal of assistance from consultees in assessing the impact of our proposals, for which we are very grateful. The information that they provided is summarised in our formal Impact Assessment, available on our website at http://www.justice.gov.uk/lawcommission/easements.htm. 5 PART 3 CHARACTERISTICS OF EASEMENTS Our provisional view is that the current requirement that an easement be attached to a dominant estate in the land serves an important purpose and should be retained. We do not believe that easements in gross should be recognised as interests in land. Do consultees agree? If they do not agree, could they explain what kinds of right they believe should be permitted by law to be created in gross? [paragraphs 3.18 and 16.4] 3.1 Currently it is not possible to have an easement over someone else’s land without also holding land that benefits from the easement. By contrast, profits à prendre (which we call “profits” in the remainder of this document) can be held “in gross”, that is, without associated land. We explained at paragraphs 3.11 to 3.17 of the Consultation Paper (“CP”) why we did not propose to extend to easements the potential for rights to be held in gross. 3.2 39 consultees responded to this question, with the majority expressing agreement with the provisional view that easements in gross should not be recognised. The responses 3.3 Consultees justified their support for our policy on a number of grounds, of which the most common was a lack of convincing arguments for recognising a new type of proprietary right. Gregory Hill (Barrister, Ten Old Square Chambers) commented: I see no need to alter the existing law.
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