It was announced in 2016 that the Government will bring forward proposals to respond to the recommendations of the Law Commission’s report on “Making Land Work: Easements, Covenants and Profits a Prendre” to simplify the law around land ownership.
The key features of the reform proposals are:
- The simplification of the present complex rules which govern the creation of easements and profits
- The introduction of a new way in which obligations relating to land will be attached to land, as legal interests. This will include the ability to create positive obligations to be enforced, thereby removing the current restrictions on the enforceability of positive covenants
- The enlargement of the jurisdiction of the Lands Chamber to discharge or modify land obligations and easements and profits created after the commencement of any reform.
As is ever the case the “devil is in the detail”. But the practical impact of the proposed reforms cannot be overestimated.
The law relating to freehold covenants is complicated and unnecessarily confusing. In particular, there seems little justification in retaining the current distinction between positive and restrictive covenants. The Law Commission concluded that there should be a significant reform in relation to positive covenants.
The Law Commission has recommended that positive and negative obligations should be able to take effect as legal interests appurtenant to another estate in land (and therefore registrable at the Land Registry) provided that:
- The benefit of the obligation touches and concerns the benefitted land
- The obligation is either
- an obligation not to do something on the burdened land
- an obligation to do something on the burdened land or on the boundary (or any structure or feature that is treated as marking or lying on the boundary) of the burdened and benefitted land; or
- an obligation to make a payment in return for the performance of an obligation
- The obligation is not made between landlord and tenant
In a new regime of land obligations the importance of the ability to enforce newly created positive obligations will be hugely important, especially between residential neighbours where there are fences and other commonly enjoyed features.
Given the changing political landscape it remains to be seen when this will be implemented but we are still in the realms of when and not if!
This is not legal advice; it is intended to provide information of general interest about current legal issues.
