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Law Commission suggest re-writing the law on rights of way

Dellah Gilbert reports on a seminar given to Hogan Lovells by Professor Elizabeth Cooke of the Law Commission on 30 January 2013

On 8 June 2011, the Law Commission published its recommendations and draft legislation to overhaul some fundamental aspects of English property law including the law on rights over neighbouring property (easements), such as rights of way.

Because of the complexity of this area of law, the Law Commission has exercised a light touch approach, concentrating on changing the acquisition of rights acquired through long use (known as prescription).  The Law Commission has recommended that there simply be one test (not the current three) for all situations.  That test will be simply 20 years’ continuous use over a neighbour’s land without interruption and without the neighbour’s consent. The 20 year period can be acquired at any time, including starting within 19 years before the date of reform.  Any period starting earlier will be caught by transitional provisions.  No declaration from the court will be required to establish the right.   However, once acquired, unless it is registered at the Land Registry the right will remain vulnerable where land is sold.

The new test will apply to future easements only which, until the new law has bedded down, will create another tier of complexity to the law on acquisition of rights over neighbouring land. 

All these recommendations are sensible improvements to the existing law and should make it “work” better.  However, a response from the Ministry of Justice, which is the next step to making the recommendations law, was due at the end of 2011 but remains outstanding.     Professor Cooke hopes to have a response by June this year, but has been given no guarantee.  Let us hope that the Government accepts the recommendations and puts the draft paper before Parliament soon.