Queen’s Speech - Law of Property Bill to modernise land restrictions and obligations

Charities which own or lease land will be interested in the proposals to simplify the law relating to property in the Queens Speech of 18 May 2016.

One of the most complex areas of property law relates to rights and restrictions on land known as “easements” or “covenants”. Examples include a right of way over your neighbour’s land or a covenant restricting the use of your land.

The law is a confusing patchwork of case law, statute and common law. It can test the knowledge of the most experienced of property lawyers.

With this in mind the Law Commission published in 2011 a report entitled “Making Land Work: Easements, Covenants and Profits a Prendre”.  In it the Commission proposed modernisation.  Amongst areas it singled out for reform are:

  • The complex rules for whether a covenant can be enforced against a future owner of land subject to a covenant. This is a particular problem with what are known as “positive covenants” e.g. a covenant to maintain a boundary fence or to contribute to the cost of repairing an access way. 
  • The present law makes it difficult for a landowner developing a residential estate for housing to create a system of reciprocal rights as between the owners of the house plots.
  • It is possible to exercise a right over your neighbour’s land without permission. Normally the neighbour can stop you.  However, after a certain period – usually 20 years – the right becomes a legal right which the neighbour can no longer stop.  These rights are called “prescriptive rights”.  Under English law there are no fewer than three ways of obtaining such rights; one is to show the right has been used since 1189 and another is based on the Prescription Act 1832, sometimes called the worst drafted Act of Parliament on the statute book!

The Law Commission’s report contains a draft bill to modernise and simplify the law in relation to the three items above and other areas. In the Queen’s Speech on 18th May 2016 the government announced its intention to implement the report, which will be interesting for all charities which have property interests.

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