The Committee has been asked to give some guidance what best practice should be followed by Solicitors following the repeal of Part 8 Chapter 1 of the Land and Conveyancing Reform Act 2009 by the Land and Conveyancing Law Reform Act 2021 (the “2021 Act”).
The 2021 Act effectively reversed the changes to the law introduced by the 2009 Act, but provided that in future prescriptive easements can only be acquired under the doctrine of Lost Modern Grant.
It is long established conveyancing practice that a vendor confirms the existence of an easement arising otherwise than by deed by production of a statutory declaration confirming use for a specified period of time continuously (without force, interruption, permission or objection) and openly. Often the title documents will include such declarations from previous owners, confirming the position during their period of ownership.
In many situations inspection will provide persuasive evidence of the existence of an established easement. Common examples include:
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a dwelling or other premises built over twenty years ago to which there is only one access and there is no indication of any alteration of the access route, and
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pipes, cables, well or waste water treatment systems and percolation areas serving a dwelling or other premises built over twenty years ago which appear to have been in place since the erection of the building.
In these situations it is the view of the Conveyancing Committee that there is no need to revisit the established conveyancing practice of accepting a statutory declaration from the vendor. Once there are appropriate declarations from the vendor and any predecessors in title for in excess of twenty years, and no indication of any difficulty such as to put a purchaser on enquiry it is the view of the Committee that it is reasonable for a purchaser’s solicitor to advise the purchaser to accept the position.
Where the position is less clear, such as service pipes, or a secondary access, which may have been used in conjunction with the premises only in the recent past, or where it is not clear how long they are in place, then it would be reasonable for the purchaser to seek corroborative evidence such as a confirmatory declaration of an independent third party with knowledge of the matter.
Where there is a material concern regarding the exercise or nature of the easement, solicitors for purchasers may need to establish the basis on which the claimed easement arose. In those circumstances the statutory declaration confirming the easement should provide as much detail as is available, to include whether the easement claimed arises under the doctrine of Lost Modern Grant or is an implied easement. Corroborative evidence of the easement may be required.
Where an easement of necessity is claimed, the precise circumstances, including the date of the transaction whereby a holding was divided giving rise to the easement, should be set out in a statutory declaration. Where an easement of common intention is claimed the precise circumstances should be explained if it is known or still possible to establish.
Section 40 of the 2009 Act is very helpful in relation to implied easements. This abolished the Rule in Wheeldon v Burrows and replaced it with clear wording without affecting the existing law on implied easements or the operation of the doctrine of non-derogation from grant.
Practitioners are referred to the previous Practice Notes issued in respect of easements which are available on the Law Society website. Other material is available under “Resources” in the Committees-Conveyancing section of the website. A specimen statutory declaration regarding the existence of an easement has recently been added.
Prior to the passing of the 2021 Act some conveyancers and lending institutions for purchasers were insisting on easements based on long user being registered in the Land Registry under the section 49A procedure. Following the introduction of the 2021 Act there is no justification for such insistence as a general rule. Where a purchaser perceives that an established easement may be under threat (such as where development is proposed in the servient tenement) they can apply to register the easement once they complete the purchase. Given that such registrations can be difficult to achieve, and often take extended periods of time, insistence on registration prior to completion of a conveyancing transaction could jeopardise the transaction.
However, it is recognised that each circumstance is different, and it is not possible to apply hard and fast rules which apply to every transaction. Each situation must be evaluated on its own merits. In certain instances, such as where there is a material concern as to the existence of an easement, or where its exercise has been challenged, the prudent course for a purchaser may be to require registration prior to completing a purchase.
This guidance will be reviewed when new legislation is enacted to reform this area of the law following the report of the proposed Government Departmental Review Group.