Law Commission proposes modernisation of landowners' rights

In its report Making Land Work, the Law Commission suggests ways to modernise ancient land rights such as easements, covenants and profits à prendre. The report includes proposed draft laws.

Easements and covenants govern what a landowner can or cannot do with their property. Profits à prendre are rights allowing one landowner to take something from another's land.

If adopted, the changes would clarify how these rights could be created and terminated, and would ensure they are properly tracked in the Land Registry.

There are currently three ways rights over another piece of land can be granted: by common law, through ancient statute or through 20 years' continuous use of the land.

This area of law has "developed over centuries" and is "long overdue for reform", the report said.

"Parts of the current law are ancient, contradictory and unfit for modern society. This report recommends reform where it is needed, while preserving those aspects of the law that function as they should," the Law Commission said.

Under the proposed laws, a new 'land obligation' would replace existing positive and restrictive covenants over land. The new obligations would have to appear on the registers of title to the affected land, and would automatically transfer with the ownership of the land when that land is sold.

Landowners would also be able to create easements and obligations over another piece of land they already own, which is not possible under the current law. These proposals will benefit developers in particular.

The Government has not yet announced whether it intends to act on any or all of these suggestions. However it could decide to change the law on easements and profits, without introducing land obligations, if it feels that it would be too difficult to implement all the reforms at once.

The proposals would apply to future rights only, meaning that existing property rights would not be affected.

"These changes involve concepts that go to the very heart of land law and, if implemented, will have a significant impact on all aspects of conveyancing law and practice – especially as it would mean that different rules will operate side by side for years to come," said Allyson Colby, a property law expert with Pinsent Masons, the law firm behind OUT-LAW.COM.

"Enactment of the proposals would simplify and bring welcome clarity to the law in a number of areas. However, there are further changes that could be made and a great deal more work to be done."