Law Reform on Easements and Restrictive Covenants Suggestions Essay

Introduction

Easements and restrictive covenants are distinct but interrelated facets of property law that have been the subject of reform for many decades but without any discernable attempts to address the various concerns. Both are capable of creating proprietary rights that effectively encumbrance land holdings and constitute a restriction on the sacrosanct entitlement to exclusive possession and quiet enjoyment. The ability to limit the enjoyment of certain rights, therefore, renders attempts to identify shortcomings and streamline them imperative. Accordingly, the present discourse highlights the current state of the law relating to various aspects of these fields, the resultant challenges deriving from the prevailing state of affairs, and suggests possible ways to mitigate them. Current law relating to both easements and restrictive covenants is highly fragmented and has various loopholes, which foster uncertainty and high complexities that necessitate reform.

Easements

Case law constitutes the primary source of the prevailing laws on easements with application of statutory provisions overly circumscribed. According to Dixon, the recognized standard for ascertaining whether an alleged entitlement can qualify as an easement incorporates a considerable degree of judicial discretion.¹ In fact, the operative definition of an easement and its constitutive components are a creature of the judgment in Re Ellenborough Park,² which was a culmination of “distillation of much case law.”³ Consequently, it is not easy to define the meaning of an easement in simple, explicit terms.⁴ Similarly, discretion is integral to establishing the requisite ingredients of easements. For instance, the fourth element on the capability of an easement forming the subject matter of a grant demands the exercise of broad discretion.⁵ The situation is compounded further by the existence of piecemeal, rather than wholesome, statutory prescription. For example, the LPA⁶ is partly applicable in relation to easements and the Prescriptions Act ⁷ that is only operative in relation to easements by prescription.

Reliance on court cases as the primary originator of the law on easements, characterized by broad discretion, and the selective application of statutory provisions to specific areas cultivates complexities, uncertainty and fragmentation in the law. For example, as Dixon explains, the satisfaction of the substantive requisites of the respective ingredients is not enough, as non-adherence to formalities can negate the existence of an easement.⁸ Thus, even establishing the constitutive attributes can be problematic considering the centrality of judicial discretion that cultivates uncertainty. Another example is that current law provides for three contemporaneous ways of prescriptive acquisition of easements, which is not only unnecessary but also highly complex. Additionally, while easement by prescription arises from long use of land, abandonment for a considerable period does not extinguish it. Therefore, unfettered judicial discretion and limited statutory delineations foster complexity, uncertainty, and fragmentation in the law on easements.

The codification of the operative principles and the establishment of a comprehensive statutory framework may be a viable means of eliminating these complexities and uncertainty, and to harmonize the law on easements. Codifying the established and recognized principles and parameters, such as the constitutive ingredients of easements, is the best way to avoid uncertainty and eliminate complications. The collation of the various principles should accompany the formulation of an elaborate statutory regime for harmonization purposes. For example, elimination of the current ways of prescription through the establishment of a single statutory framework that acknowledges prevailing entitlements is a viable approach. A major attribute of the proposed statutory framework would be the elimination of broad judicial discretion by demanding its sparing invocation and application. Thus, creating a statutory framework will facilitate the codification of the law and minimize the influence of judicial discretion because the determination of easements will follow entrenched, written criteria.

Reform efforts must also focus on enhancing the prevailing law on the gist and scope of the reasonable use criterion that underlies the ouster principal. According to this doctrine, the dominant tenement’s proprietor cannot use the property in a manner that disregards the interests of the owner of the servient tenement. Consequently, it precipitates the concern whether the custody and control of the land as a whole remains with the holder of the servient tenement.

As evidenced by Lord Scott’s obiter remarks in the House of Lords decision of Moncrief v Jamieson,⁹ there is uncertainty regarding the appropriate test in this area. Therefore, whether reasonable use or the maintenance of possession and control constitute the appropriate standard remains contentious. Although Lord Scott expressed preference for the former, reasonable use is the operative threshold as established by Batchelor v Marlowe¹⁰ and reiterated in R Square Properties v Nissan Motors.¹¹ Hence, an easement arises where the dominant owner makes reasonable use of the land regardless of its implications on its possession and control by the servient proprietor.

The prevailing state of the law is problematic because it cultivates uncertainty regarding the extent to which the owner of the dominant tenement can use the servient tenement. The outcomes of the two cases mentioned above, Batchelor and R Square, are ample evidence of the untenable consequences characterized by inconsistences caused by this uncertainty. The court, in the former, held that an entitlement to park many vehicles on the supposed servient land did not qualify as an easement because it was inconsistent with the restricted character of easements.¹² In contrast, it recognized an easement to park over 80 cars in the latter case on the premise that such use did not interfere with the servient holder’s reasonable use of his land.¹³ It is apparent, therefore, that the reasonable use test is problematic as it can result in the grant of a large degree of occupation or control of the servient tenement by the dominant owner. It necessarily follows that an explicit statutory delineation of the appropriate test as well as its scope and nature is imperative to avert the uncertainty and divergent outcomes enumerated above.

Restrictive Covenants

Restrictive covenants denote responsibilities inhered to land that bind the present and future owners not to engage in certain activities on it. They are typically contractual agreements that create equitable, rather than legal, interests whose benefits and encumbrances can transfer to future land proprietors.¹⁴ Notably, although restrictive covenants have significant effects on proprietary rights, there is no registration system for such interests. Accordingly, the inability to register is a major feature of the current law on restrictive covenants that is problematic because it restricts the legal recognition and enforcement of related interests. Non-registrability of restrictive covenants is problematic because of the associated difficulty in ascertaining the identity of the individual that are entitled to institute a claim based on a covenant. Accordingly, a property may be encumbered by a restrictive covenant but, in the event of breach, one may lack the legal standing to sue. Hence, broadening the bases of standing to enforce such covenants is one area of reform.

In response, the Law Reform Commission has proposed the grant of legal recognition of the interests resulting from restrictive covenants. Dixon explains that it suggested the establishment of a registrable statutory ‘land obligation’ that can be recorded against the titles of the respective parties.¹⁵ It would be an interest appurtenant to a land interest similar to an easement. Accordingly, the presence of both dominant and servient tenements and an explicit benefit to the former are imperative. Its creation would only be explicit and upon registration, which would be necessary to make it legally enforceable. Registration would also render the land obligation enforceable by the successors of the respective parties. Notably, the registration proposal would effectively mean that restrictive covenants qualify as legal interests in land worthy of statutory recognition under the LPA.

The contractual nature of restrictive covenants means that the doctrine of privity becomes operative. Consequently, the burdens and liabilities accruing to the parties that made the covenant continue even in circumstances where neither of them retains possession and control of the land. Contrariwise, the benefits and impairments associated with restrictive covenants can inhere to future owners. Therefore, the force of restrictive covenants conventionally attach to the land in that the changes in proprietors do not impair the associated advantages and disadvantages deriving from the covenant. Nevertheless, this process is highly technical and intricate as evidenced by the dictates of specific circumstances and rules for the respective benefits and burdens of a covenant to run in both law and equity.

Accordingly, there is need to address these issues to facilitate more effective application and enforcement of restrictive covenants. As noted, the establishment and recognition of a legal interest deriving from restrictive covenants has been proposed as a viable means to address this problem. Dixon asserts that such recognition would mean that the original parties to the covenant, once they part with the land, would be unable to enforce or be liable on the covenant.¹⁶ Additionally, it is important to simplify and clarify the law on restrictive covenants by eliminating the intricate and technical conditions required for the burden to run in equity. Similarly, harmonizing the rules on the accrual of the benefits in law and in equity would be an integral step in eliminating complexity and uncertainty.

Another potential avenue of reform relates to the elimination of the present requirement that the owners of the respective tenements be different. This dictate is a source of unnecessary complication in the law and imposes limitations on a proprietor’s capacity to utilize their land. Accordingly, proposals for reform may involve permitting the registration of interests deriving from restrictive covenants notwithstanding the common ownership of the respective tenements. Consequently, landowners will no longer be restricted in the exercise of their proprietary rights, as they will have the ability to establish land interests and obligations on the title to their properties prior to the disposition of the respective tenements. Hence, reform in this regard also involves lessening the restrictions associated with such covenants.

Finally, the current law on restrictive covenants does not empower the relevant oversight body, the Upper Tribunal’s Land Chamber, to make determinations regarding the operation and effect of restrictive covenants. Consequently, another area of possible reform involves granting this Tribunal the necessary powers to act accordingly. Accordingly, the law can bestow it with extended authority to issue declarations on whether a restriction affects a piece of land, the nature and scope of that limitation, and its enforceability. It necessarily follows that reform of the law on restrictive covenants will not only have to encompass an overhaul of the rules but also of the regulatory framework to facilitate effective implementation of the changes. It will also serve to clarify the law because of the similar consideration of both positive and restrictive covenants as opposed to the present situation where the former have distinct effects from the latter. Such uniformity in the application of the law is desirable to ensure consistency.

Conclusion

This discourse establishes that the existing law on both easements and restrictive covenants is problematic in various aspects. Notably, it embodies various shortcomings, is highly fragmented and unnecessarily complicated and generally cultivates uncertainty. Accordingly, there is a suggestion to not only codify the existing recognized principles but also establish a broader, more comprehensive statutory framework on easements. Codification would harmonize the law and minimize the influence of judicial discretion that breeds uncertainty. Additionally, there is a need to delineate the appropriate criteria in relation to the ouster rule to eliminate uncertainty and divergent outcomes. Regarding restrictive covenants, there is also a need for the statutory recognition of the rights created under such arrangements. Additionally, the intricate and technical prerequisites that must exist for the burden of a restrictive covenant to inhere inequity should be simplified and, if possible, eliminated. Accordingly, there is ample justification for the calls for reform of the law on both easements and restrictive covenants.

Bibliography

Statutes

Law of Property Act 1925

Prescription Act 1832

Case Law

Batchelor v Marlowe [2001] 82 P & CR 459

Moncrief v Jamieson [2007] UKHL 42

R Square Properties v Nissan Motors [2014] LTL 14/3/2014

Re Ellenborough Park [1956] Ch 131

Text

Dixon, Martin, Modern Land Law (11^th edn, Routledge 2018)

Footnotes

1. Martin Dixon, Modern Land Law (11^th edn, Routledge 2018) 285.
2. Re Ellenborough Park [1956] Ch 131.
3. Dixon (n 1) 285.
4. Ibid 284.
5. Martin Dixon, Modern Land Law (11^th edn, Routledge 2018) 289.
6. Law of Property Act 1925.
7. Prescription Act 1832.
8. Dixon (n 5) 285.
9. Moncrief v Jamieson [2007] UKHL 42.
10. Batchelor v Marlowe [2001] 82 P & CR 459.
11. R Square Properties v Nissan Motors [2014] LTL 14/3/2014.
12. Martin Dixon, Modern Land Law (11^th edn, Routledge 2018) 291.
13. Ibid.
14. Dixon (n 12) 360.
15. Martin Dixon, Modern Land Law (11^th edn, Routledge 2018) 361.
16. Martin Dixon, Modern Land Law (11^th edn, Routledge 2018) 361.