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. No lease has been signed but Rita has let Maria stay in the flat, land law essays. Advise Norris, Maria and Bill land law essays what rights they may have and how to protect them should Rita sell the house to Audrey. About Press Blog People Papers Job Board We're Hiring! To browse Academia. But the current law on easements in England is a complex web of uncertainty and confusion, which is accompanied by frequent proposals for reform. This would replace all other existing methods of implication.
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edu no longer supports Internet Explorer. To browse Academia, land law essays. edu and the wider internet faster and more securely, please take a few seconds to upgrade your browser. Log in with Facebook Log in with Google. Remember me on this computer. Enter the email address you signed up with and we'll email you a reset link. Need an account? Click here to sign up. Download Free ODT. Download Free PDF. Land Law - Easements Essay. Sheena Nasim. Download Download PDF Full PDF Package Download Full PDF Package This Paper. A short summary of this paper. 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.
The proposed reform ought to be encompassed within the aims of the Act. It will be argued that the reforms mentioned in the most recent Consultation paper are necessary, and do largely cater for the land law essays century, though not in all respects. An aspect of importance to be considered is the effect of making easements easier to acquire and more land law essays 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 1 Maples Teesdale Solicitors 'Law Reform - Rights Land law essays Property - Easements and Covenants'.
Stationary Office para 1. Conv 4 Law Commission 'Land registration for the twenty-first century: A conveyancing revolution'. According to Wragge and Co real estate group, these proposals for reform work out to be advantageous for developers6. This does give the impression that the reforms are adapted for the future. Acquisition by implication, the Law of Property Act LPAland law essays, 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, land law essays, either the benefit or the burden, on conveyance of property, land law essays, 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. 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 land law essays allowed to develop without sufficient control, to the extent land law essays the rules on implication are not coherent. Open Source planning no. Morgan, P. Sweet and Maxwell. The Commission suggest a single statutory test to supplant the current cluster of methods. This would appear to be a land law essays solution as it would give more importance to the actual intentions of the parties, which is surely more fair. Moreover, given that conveyances are more numerous than they have been ever before, land law essays, the effect of this change would provide a large scale move towards an intention based system.
For these reasons, the Commission have settled on a test land law essays 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 land law essays the current law of implication relating to land law essays is necessary for the reasonable use of the land. The Commission also do not offer any change land law essays the current law in relation to implication being expressly excluded, and neither does the report support land law essays 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. Law Commission report n, land law essays. This twentieth century law has evolved from nineteenth century corpus, which was finalised in subsequent statutes enacted in being the Law of Property Actland law essays, along with the Land Registration Actwhich 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 property was leasehold, thus fell outside the ambit of this statutory 'code'. So this legislation was passed with these facts in mind. 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 land law essays property in that is to be able to create new easements, land law essays. It effectively adds terms into the transfer of the legal estate. It has the ability to 'upgrade' interests, transforming land law essays 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 12 Law of Property Act S. Gray, S. OUP 14 Tee, L. The reform proposed by the Commission is that this section should no longer be allowed to upgrade precarious benefits into legal easements, land law essays.
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 freehold ones. 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, land law essays. 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 land law essays 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 16 Tee Op Cit no. Secondly, because the law was supposedly land law essays in the case of Moncrieff v Jamieson20, however, this has not been the land law essays. 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, land law essays, 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 academic discussion, the law remains unclear, land law essays. 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 land law essays principle of an easement in the form of a right to park.
incidental to the exercise of a a right to use another's land in a way that prevents 20 [] UKHL 42 21 [] 2 K. B CA 22 [] 1 WLR ChD 23 Spark Op Cit no. This illustrates that indeed the law has taken a significant leap forward, land law essays, 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 is a step towards phasing out the influence of archaic law which was drafted and implemented in a land law essays social and historical context. For these reasons, 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. Conv Dixon, M. OUP Green Paper Great Britain, land law essays. London Haley, M 'Easements, exclusionary use and elusive principles- the right to park'.
The Stationary Office Spark, G. Related Papers Easements- assessing Law Commission reform proposals By Sheena Nasim. The Law Commission EASEMENTS, COVENANTS AND PROFITS À PRENDRE A Consultation Paper By Hazel Chang, land law essays. Q A Land Law By pam bong. Framework for Land Obligations: What can be Learnt from the Scots Law of Real Burdens? By Lu Xu. By Andrew Lyall. Download File. About Press Blog People Land law essays Job Board We're Hiring! Land law essays Center Find new research papers in: Physics Chemistry Biology Health Sciences Ecology Earth Sciences Cognitive Science Mathematics Computer Science Terms Privacy Copyright Academia ©
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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. 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.
Law Commission report n. This twentieth century law has evolved from nineteenth century corpus, which was finalised in subsequent statutes enacted in being the Law of Property Act , along with the Land Registration Act , 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 property was leasehold, thus fell outside the ambit of this statutory 'code'. So this legislation was passed with these facts in mind. 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 12 Law of Property Act S. Gray, S. OUP 14 Tee, L. 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 freehold ones. 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 16 Tee Op Cit no. 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 academic discussion, the law remains unclear. 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. incidental to the exercise of a a right to use another's land in a way that prevents 20 [] UKHL 42 21 [] 2 K. B CA 22 [] 1 WLR ChD 23 Spark Op Cit no. 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 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, 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. However, as Norris had been thrown out of his lodgings by his landlady Emily, Rita agreed to let Norris live in the upper flat while their solicitors negotiated an acceptable lease. Meanwhile, Rita has also found a suitable occupant for the ground floor flat. No lease has been signed but Rita has let Maria stay in the flat. Maria has been paying Rita £ a week. Furthermore, Rita has a next-door neighbour called Bill who is a builder. Rita said that this would be fine so long as Bill repaired the driveway, which was crumbling in places and has a large pot-hole in it.
Bill paid for a friend of his to come and re-surface the entire driveway and has been parking both of his vehicles there ever since. While Rita was having her hair dyed in the salon where Maria works, Maria overheard Rita talking to her boss Audrey and discussing selling the house to Audrey. Maria has informed both Bill and Norris and all three are now worried about protecting their rights. They know that the house is registered land but are unsure about their rights. Advise Norris, Maria and Bill about what rights they may have and how to protect them should Rita sell the house to Audrey. This Essay is an LLB LAW, and requires Harvard style references in the footnotes with law cases etc…..
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