S.62 LPA 1925 Restating the Case for Reform

Poulsom, MW (2017) S.62 LPA 1925 Restating the Case for Reform. International Journal of Law in the Built Environment, 9 (1). ISSN 1756-1450

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Abstract

Purpose This paper explores how S.62 LPA 1925 and its equivalent provisions in other jurisdictions have been interpreted as having the capacity to create new easements. It is intended to identify that the theoretical justification for this interpretation can be viewed as flawed, and that the practical implications of it are unsatisfactory. It intends to restate the need for reform and to challenge arguments that this interpretation is correct and justified. Design/methodology/approach This paper examines and analyses the origins of the principle that S.62 LPA 1925 can create new legal rights, considers similar provisions from other jurisdictions, examines recent attempts to justify the creative effect of the section, and offers observations on proposals for reform. Findings It is found that the ability of S.62 LPA 1925 to create legal easements from precarious rights is replicated in many jurisdictions, has been widely criticised as both incorrect in principle and problematic in practice and has been the subject of well-reasoned and workable proposals for reform for more than 40 years. Originality/value From both theoretical and from property practitioner perspectives, this paper highlights the lack of justification for the principle that S.62 LPA can create easements from precarious rights, challenges the arguments for retaining the principle, and offers practical proposals drawn from several jurisdictions as to how the section and its equivalent provisions abroad could be reformed.