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Land Law 2000 words ‘The Law of Easements are complex and archaic and in desperate need of reform. Unfortunately, the reforms proposed by the Law Commission will not produce a regime fit for the 21st century’ Discuss The law relating to easements has become an increasingly important component of, not only our legal system, but our society with “recent Land Registry figures suggesting that at least 65% of freehold titles are subject to one or more easements”1. But the current law on easements in England is a complex web of uncertainty and confusion, which is accompanied by frequent proposals for reform. However the lack of impact that past Law Commission proposals have had on this seemingly stubborn area of law highlights the law's failure to keep up with domestic and commercial developments. Nevertheless the most recent Law Commission paper’s aim is to “modernise and simplify some very long-established law which is causing difficulty and unnecessary cost by its complexity and antiquity”2.

The twenty-first century marks the beginning of “legal climate change”3, with shifting domestic and commercial uses of land. This has resulted in the introduction of the LRA 2002, dubbed as a “conveyancing revolution”4. The proposed reform ought to be encompassed within the aims of the 2002 Act. It will be argued that the reforms mentioned in the most recent Consultation paper are necessary, and do largely cater for the twenty-first century, though not in all respects. An aspect of importance to be considered is the effect of making easements easier to acquire and more obvious to spot, this is a possible foreseeable result of clarifying the law in this area. However, the need to protect land from becoming over-burdened, especially with the recent Coalition Government's planning proposals for large-scale development5 need to be taken into consideration. According to Wragge and Co real estate group, these proposals for reform work out to be advantageous for developers6. This 1

Maples Teesdale Solicitors (2008) 'Law Reform - Rights Affecting Property - Easements and Covenants'. London. Available form: [ 02/04/2012] 2 Law Commission (2011) 'Making Land Work: Easements, Covenants and Profits a prendre' No. 327 London. Stationary Office para 1.14 3 Burns, F. (2007). ‘Prescriptive easements in England and legal ‘climate change’. Conv 133-147 4 Law Commission (2001) 'Land registration for the twenty-first century: A conveyancing revolution'. No. 271. London. The Stationary Office 5 Green Paper (2010) Great Britain. Open Source planning no.14 London: The Stationary Office 6 Wragge and Co (2011) 'Refrom to easements and covenants: the Law Commission recommends changes which could

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Land Law 2000 words does give the impression that the reforms are adapted for the future. Acquisition by implication, the Law of Property Act 1925 (LPA), section 62 in particular and parking easements (easements of excessive use) will be looked as, not only do they represent examples of twenty-first century problems that easements must now adapt to deal with, but also are crucial areas of the law of easements which are complex and archaic.

Acquisition by implication Implication operates to imply an easement, either the benefit or the burden, on conveyance of property, where the degree of that benefit or burden is not expressly present. This area, accompanied by prescription makes up the bulk of the Commission paper, thus implication will be of key importance with only brief references to prescription. The law of implication and prescription has long been the root of large amounts of case disputes and has led to “cost and distress of land owners”7 whose land has become burdened, unpredictably by an obligation. Furthermore, there a range of different types of implication methods, from easements of necessity, of intended use, the rule in Wheeldon v Burrows8, Gale on Easements even provides another possible method of implication stemming from the description of the land9. This clearly illustrates that this area of law has become unmanaged. It has been allowed to develop without sufficient control, to the extent that the rules on implication are not coherent. Unfortunately, the 2008 Consultation paper’s response10 highlighted a wish to maintain a variant of both methods of implication and prescription for the law of easements which has filtered through to the most recent report.

The Commission suggest a single statutory test to supplant the current cluster of methods. This would appear to be a reasonable solution as it would give more importance to the actual intentions of the make development easier.' [online] Available from: [03/04/2012] Dixon, M. (2012) ‘Editorial’ Conv 1, 1-4 8 (1879) LR 12 ChD 31 9 Gale,C. Morgan, P. (2008) Gale on Easements. Sweet and Maxwell. 10 Commission (2011) Op Cit: no.2 7

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Land Law 2000 words parties, which is surely more fair. Moreover, given that conveyances are more numerous than they have been ever before, the effect of this change would provide a large scale move towards an intention based system. However, a consultee of the report stated that, though this reform of one statutory based principle appears “academically attractive, but is unlikely to serve the purpose of the reforms well.”11 To add, the intention test is said to be susceptible to evidential difficulties. For these reasons, the Commission have settled on a test laid out in clause 20 of the Draft Bill. This would replace all other existing methods of implication. Surely the effect of this would be to greatly reduce the level of uncertainty in this area.

However, this new test is in fact a re-structuring of the current law of implication relating to what is necessary for the reasonable use of the land. The Commission also do not offer any change on the current law in relation to implication being expressly excluded, and neither does the report support any alterations to the doctrine of non- derogation from grant. However the effects of these shortcomings are not yet clear as the new bill has yet to become statute, one can conclude that, for a significantly large area of easement law, relatively little change of any worth has actually been proposed. Therefore, the Commission have not proposed sufficient changes to the fundamentals of the implication of an easement, which is required for it to be fit for the twenty-first century.

Section 62 Law of Property Act 1925 The LPA (Section 62)12 ought to be contextualised and understood before criticism is to be levelled at it. This twentieth century law has evolved from nineteenth century corpus, which was finalised in subsequent statutes enacted in 1926 being the Law of Property Act 1925, along with the Land Registration Act 1925, which is a poorly-drafted piece of legislation which did no justice for the idea of Land Registration. Note that few people were affected by these statutes as almost all residential 11 12

HHJ Ian Lemming QC. Law Commission report n.327 Op Cit: no.2 Law of Property Act 1925 S.62, referred to as (LPA) from here onwards.

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Land Law 2000 words property was leasehold, thus fell outside the ambit of this statutory 'code'.13 Moreover, nineteenth century conveyances are said to have used “general words”14 which are evident in the statute. So this legislation was passed with these facts in mind. However, today, a societal evolution in Britain has transformed it into a “home-owning democracy”15 in which freehold owners make up the majority of property dwellers. This gives a background as to why the law created by the LPA ought to be reassessed in relation to Easements.

Section 62 has an intriguing property in that is to be able to create new easements. It effectively adds terms into the transfer of the legal estate. It has the ability to 'upgrade' interests, transforming leasehold interests into freehold ones, an area which the Commission has proposed to maintain. This section operates to expressly include in a conveyance, the interests, without giving effect to the intention of the parties involved. This is an extremely powerful ability, especially in the way in which it operates in an incognito manner. Moreover, section 62(4) has power to transform precarious rights into legal interests, which did not cause much difficulty in the early twentieth century, but now, due to the large scale home owning culture, the trouble of this section becomes more obvious. For example, the “transformation of a mere license into a fully-fledged legal easement”16 would have “unfortunate results”17 on the licensor, in many occasions, the licensor in this situation would be unaware of the operation of section 62.

The reform proposed by the Commission is that this section should no longer be allowed to upgrade precarious benefits into legal easements. This is a sensible reform which would bring the current law more up-do-date with the conveyancing culture of the twenty-first century. However, the Commission maintain that they would not change the Section 62 ability to upgrade leasehold easements into 13 14 15 16 17

Gray, K. Gray, S. (2009) Land Law. Oxford. OUP Tee, L. (1998). “Metamorphoses and Section 62 of the Law of Property Act 1925” Conv115-124 Gray Supra no.13 Tee Op Cit no. 14 Ibid

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Land Law 2000 words freehold ones. The justification follows that this section would “be helpful protection against inadvertence”18. It appears that the ability to upgrade rights is beneficial for the twenty-first century in relation to leasehold enfranchisement, which is another element of land law that has multiplied over the past few centuries.

Therefore, the reforms suggested for Section 62 of the LPA, have proposed solutions to an important area of land law which is still archaic in nature. For this reason, the Commission have fulfilled their aim in this sense, though this is only one difficulty among many.

Easements that confer a right to extensive use This is becoming an issue of practical importance19 in this area of law, especially in relation to 'parking easements' for two reasons. Firstly, because the number of motoring vehicles are more common now than they ever were before with the proliferation of multiple vehicle households in the UK since the turn of the twenty-first century and the numbers seem to be increasing. Secondly, because the law was supposedly clarified in the case of Moncrieff v Jamieson20, however, this has not been the case. In fact, this decision coupled with the ouster principle, has led to an uncertainty as to what circumstances a right to park can constitute a valid easement.

There is no doubt that the right to park does amount to a valid easement, as it is capable of accommodating the dominant tenement as well as being able to form the subject matter of a grant. The critical issue is whether or not the right to park a car amounts to an excessive use of the land, moreover, the question of possession is raised. Cases such as Wright v Macadam21 and Grisby v Melville22 were involved with the development of law in this area, but despite this authority and 18

Report No. 327 Op Cit no. 2 Spark, G. (2012). 'Easements of parking and storage: are easements non- possessory interests in land?' Conv 1, 6-18 20 [2007] UKHL 42 21 [1949] 2 K.B 744 CA 22 [1972] 1 WLR 1355 ChD 19

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Land Law 2000 words academic discussion, the law remains unclear. Spark argues in his paper, that there has been a move away from the possessory test as it does not “serve practical realities of contemporary society.”23 He calls for an abandonment of fundamental principles of easement law in accepting that rights may exist as an easement, even if it is amounting to a claim of possession, provided that it does not exclude the servient owner completely. This shift would be the necessary requirement to ensure that the law was adequate for modern society. The House of Lords in Moncrieff 24 were enthusiastic to accept the principle of an easement in the form of a right to park. However the “boudary between exclusive use as of right and exclusionary use... incidental to the exercise of a ...right remains as elusive as ever”25

The Commission suggested this shift by stating: “... 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.”26 Which is encapsulated in clause 24 of the Draft Bill. This illustrates that indeed the law has taken a significant leap forward, in that it put fundamentals of easement law second to the forever morphing practical needs of society.

Concluding remarks It is fair to conclude that, in a number of ways, the Law Commission have managed to modernise the law on easements. This is especially seen through easements relating to parking. Though it may seem radical, this law is in-line with easement laws for pipes and cables which appear exclusively possessive in nature. Furthermore, the efforts to simplify the complex law relating to implication can be seen through the recent proposals, even though, they have not gone far enough. Lastly, the suggestion for reform of Section 62 LPA 1925 is a step towards phasing out the influence of archaic law which was drafted and implemented in a different social and historical context. For these reasons,

23 24 25 26

Spark Op Cit no. 19 Supra 20 Haley, M (2008) 'Easements, exclusionary use and elusive principles- the right to park'. Conv. 3, 244-253 Report 327. p3.209 Op Cit no. 2

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Land Law 2000 words though the law of easements is complex and archaic and in desperate need of reform, the Law Commission have managed, in respect to the above matters, to bring about a regime largely adequate for the twenty-first century.

Bibliography Burns, F. (2007). ‘Prescriptive easements in England and legal ‘climate change’. Conv 133-147

Dixon, M. (2012) ‘Editorial’ Conv 1, 1-4

Gale,C. Morgan, P. (2008) Gale on Easements. Sweet and Maxwell.

Gray, K. Gray, S. (2009) Land Law. Oxford. OUP

Green Paper (2010) Great Britain. Open Source planning no.14 London: The Stationary Office

Maples Teesdale Solicitors (2008) 'Law Reform - Rights Affecting Property - Easements and Covenants'. London

Haley, M (2008) 'Easements, exclusionary use and elusive principles- the right to park'. Conv. 3, 244-253

Law Commission (2011) 'Making Land Work: Easements, Covenants and Profits a prendre' No. 327 London. Stationary Office para 1.14

Law Commission (2001) 'Land registration for the twenty-first century: A conveyancing revolution'. No. 271. London. The Stationary Office

Spark, G. (2012). 'Easements of parking and storage: are easements non- possessory interests in land?' Conv 1, 6-18

Tee, L. (1998). “Metamorphoses and Section 62 of the Law of Property Act 1925” Conv115-124

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Land Law 2000 words Wragge and Co (2011) 'Refrom to easements and covenants: the Law Commission recommends changes which could make development easier.'

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