One of the issues that developers face is the potential havoc that an easement can wreak. To seek to establish that an easement has been ‘abandoned’ and no longer enforceable is not an easy undertaking.
In 2011 the Law Commission released a report setting out new proposals on how to terminate an easement:
• A rebuttable presumption of abandonment where 20 years of non-use is proven.
• The Upper Tribunal (Lands Chamber) (UT) should have jurisdiction to modify and discharge future easements.
• The UT should only modify an easement where the change will not be materially less convenient to the land that was under the benefit of the easement, and no more burdensome to the land burdened.
• The UT should have the power to order that the interest take effect as a different kind of easement, so long as the applicant does not object.
• Where an easement is attached to a leasehold it should end when the lease ends, however where it ends by a merger with the freehold or surrender, the freeholder should be able to elect to keep the easement.
• The variation or release of an easement should be a registrable disposition at the land registry so the register represents reality.
It appears that the intention of the Law Commission is to set clear guidance in order to make arguing abandonment of an easement possible. There also seems to be a desire to create a more common sense approach. The government has indicated that it should be making a decision regarding the report this year. Developers can hope these suggestions will be introduced, but we shall have to wait and see.
By Sarah Hartley, Paralegal