The commercial property industry is set for a legal shake-up that will rock the foundations of the best built buildings, after the Law Commission published its report ‘Making Land Work: Easements, Covenants and Profits à Prendre.’
It contains a raft of recommendations, intended to simplify and modernise the law (removing all the ‘thous’ and ‘thees’ from laws which date back centuries).
Proposals include removing future liability from original covenants once they have sold their land; this is in contrast to the present situation, where an original owner can remain liable even after selling.
The plan to grant more power to the Upper Tribunal, part of the Lands Chamber, responsible for jurisdiction in land cases, has gained positive approval from the commercial property sector. It raises the prospect of easements, such as right of way or drainage rights, to be adjudicated on by the tribunal, rather than a lengthy application process by the tenants being necessary. The bid to introduce a presumption of abandonment to an easement if it hasn’t been used for twenty continuous years is expected by some legal experts to be more controversial.
Another idea worthy of a mention is ensuring that the Land Registry holds details of relevant rights of land, which prospective land buyers can access and verify prior to purchase, to encourage transparency and reduce the risk of land disputes.
There is also a recommendation that profits from activities resulting from such things as mining rights should be gained by express contract, rather than by implication or prescription.
Of particularly interest is the right of light issue. The 1832 Prescription Act is regularly cited by lawyers to gain right of light in both residential and commercial property cases. The commission advocates abolishing the Act and making any claim for damages based on diminution of value on the claimant, rather than on potential profits for the commercial property developer.
It’s a comprehensive review, over 250 pages and covering most aspects of property law, and is available at http://www.justice.gov.uk/lawcommission/docs/lc327_easements_summary.pdf.
