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Extinguishment of Easements and Profits à Prendre

Document Cited authorities 17 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages51-54
Chapter 7


Extinguishment of Easements and Profits à Prendre

INTRODUCTION

7.1 There is no mechanism similar to that arising in the case of restrictive covenants1whereby obsolete or redundant easements or profits, including those which unreasonably hamper redevelopment or other reasonable user of the servient land without any or any significant harm being occasioned to the dominant land, may be discharged or modified.

7.2 There are, however, ways in which easements may be extinguished or suspended. These may be classed as follows: (a) by statute; (b) by express release;
(c) by implied release; or (d) by unity of ownership and possession.

BY STATUTE

7.3 Section 295 of the Housing Act 1985 applies to extinguish easements in the case of local authorities which have acquired land for clearance. Section 236 of the Town and Country Planning Act 1990 (TCPA 1990) does likewise in relation to land which has been compulsorily acquired. Section 237 of the TCPA 1990 also authorises the overriding of any private rights (such as restrictive covenants and easements) affecting the use of land which is held by a local authority for planning purposes, where development is carried out in accordance with planning permission (third parties affected will be entitled to compensation under section 237(4) – the power to override is, in effect, tantamount to the exercise of a compulsory purchase power). This power extends not only to development by a local authority, but also in the case of development carried out by any person deriving title from a local authority.2

BY EXPRESS RELEASE

7.4 A deed is required, although it seems probable that in the absence of an executed deed the servient owner might still be able to establish an entitlement to

1Law of Property Act 1925, s 84 (the power of the Lands Chamber of the Upper Tribunal to discharge or modify restrictive covenants in relation to land).

2See R v City of London Corporation and Mutual Insurance Society ex parte Mystery of Barbers

(1997) 73 P & CR 59 at 64 for a helpful explanation of the purpose of the power.

52 Restrictions on the Use of Land

an equitable proprietary remedy on the basis that the easement over his land has been extinguished in circumstances where the servient owner can show that there has been detrimental reliance on his part arising from a representation or other assurances made by the dominant owner.3

BY IMPLIED RELEASE

7.5 What is necessary to...

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