Should the Law of Easements Be Reformed

The last important recommendation regarding the power to fulfill or modify third-party rights could also be of great help to developers if implemented. An encumbered landowner seeking to enforce a restrictive contract, for example, may face a number of opponents. There are four reasons why a covenant can be fulfilled. Under applicable law, as interpreted by the court, the landowner seeking dismissal must invoke the same single ground against each individual objector. For example, if there are five opponents, it would not be sufficient to prove that two objectors accepted the discharge (ground (b)), while three others would not be prejudiced by the opening (ground (c)). The Legal Affairs Commission suggests that it should be sufficient for the offending landowner to be able to prove a reason for dismissal against each objector (but not necessarily the same). This would potentially greatly facilitate the exercise of third party rights through this procedure. The reform would also mean that, unlike in the past, an easement would no longer automatically expire when the beneficiary land and the encumbered land became joint ownership (although the co-owner could still release it). Unlike many other proposals by the Legal Affairs Committee, this recommendation would apply to easements created before and after the implementation of the proposal. However, this could eventually lead to easements considered extinguished being later “reinstated”.

It appears that, in certain circumstances, the owner of the encumbered asset may unknowingly be subject to an easement again, which would be an unwelcome result of the reform. There is another distinction between restrictive covenants and land commitments. At present, it is not possible to register the benefit of a restrictive agreement, as it is only a fair and not a legal interest. However, land obligations exist under the law. One consequence of this is that the benefits and burden of a land obligation could (and should) be recorded. This would make it easier to identify those who benefit from a land commitment and, if necessary, to negotiate with them its release. It would also place land bonds on a basis similar to easements, which are legal interests. Similarly, the Commission recommends replacing the three existing methods by which an easement may be implied (as opposed to an explicit concession or limitation period) with legislative review.

This would simplify the law while reproducing all the useful cases of implications in the current law. The Legal Commission has recognized that some areas of the law of servitude are largely outdated and need to be reformed. Below is a more detailed description of the Legal Affairs Committee`s proposal. Case law has given rise to some uncertainty as to the validity of certain easements, which appear to leave the encumbered owner without proper use of his property. The main area where this can cause difficulties is the right to park a car; see, for example, Moncrieff/Jamieson, Virdi/Chana and Safestore/RSN Property Limited. The Law Commission recommends that an easement be valid, although it prevents the encumbered owner from using his land wisely, as long as it does not grant exclusive ownership to the beneficial owner (in which case it would generally be a lease rather than an easement). This would ensure that the validity of a potentially wide range of park easements, which are commonly used in private and commercial transactions, is beyond doubt. An easement may also be acquired by tacit grant under the rule set out in Wheeldon v. Burrows.

This rule provides that when part of a property is sold, all the benefits necessary for the proper enjoyment of the sold part are transferred to the buyer in the form of easements. This rule applies only to the extent that it is not contrary to the intention of the parties. Codifying operational principles and creating a comprehensive legal framework can be a viable way to remove this complexity and uncertainty and harmonize the right of servitude. Codification of established and recognized principles and parameters, such as the building blocks of easements, is the best way to avoid uncertainty and complications. The compilation of the various principles should be accompanied by the formulation of a legal regime developed for the purpose of harmonization.