Nick Hopkins is approaching six years at the Law Commission in his role as commissioner for property, family and trust law. During that time, he has had huge involvement in the organisation’s 13th programme of law reform, including major projects on land registration and leasehold property, the latter of which could transform the future of home ownership in England and Wales.
What can be left to achieve? I joke that Hopkins, who is a professor of law at the University of Reading, must feel like Alexander the Great, and borrow a quote from Hans Gruber, the fictional antagonist in the film Die Hard, who famously said: “And when Alexander saw the breadth of his domain, he wept, for there were no more worlds to conquer.”
Hopkins, clearly no stranger to 1980s action movies, laughs. “I think I’m more likely to weep on the basis that I can’t possibly conquer all the worlds that need to be conquered,” he says. “There is still a huge amount that we can do.”
His eyes still firmly on the horizon, Hopkins and the Commission now move on to their 14th programme of law reform, a consultation on which runs until the end of July. Potential projects include several of significant interest to the real estate sector, and they are actively seeking suggestions from the industry on other problem areas that could be overhauled.
Public profile
Asked how he explains the operation of the Law Commission to the uninitiated, Hopkins is succinct. “Our job is to make recommendations to government as to how to change the law, to ensure that the law is fair, modern, simple and cost-effective,” he says.
He believes that understanding of the importance of the Commission’s work across real estate has increased in recent years, thanks to the 13th programme’s property-focused work gaining “a much higher public profile”, including reports on residential leasehold, enfranchisement and commonhold, published in July 2020.
One year on, Hopkins says the Commission is “really pleased” with the reaction. “While the government hasn’t given us a full response yet to the reports, we have seen some very positive developments,” he says. “I think everything we’ve seen so far has given us the real encouragement that that work has momentum behind it and that the commitments are there on government’s part to take it forward.”
Similarly, he welcomes the government’s response to the Commission’s comprehensive review of the Land Registration Act 2002. “The government has accepted the majority of the recommendations we made and has also identified a number of others around rectification of the register, where it wants to undertake further work before making a final decision,” he says.
Once the Commission has completed a project and made its recommendations, it can take considerable time for its reform proposals to become law – and, often, they may never be implemented at all. Conversely, in times of crisis, such as during the Covid-19 pandemic, sweeping changes can be made almost overnight, as evidenced by the significant developments in planning and landlord and tenant law that have formed part of the government’s coronavirus response.
But Hopkins is sanguine about the disparity. “It doesn’t frustrate me,” he says. “It shows the ability and the need to respond to priorities. It also shows where the work the Law Commission does can really fit in and benefit those developments.”
He cites another 13th programme project led by colleague Sarah Green, setting out the status and validity of electronic signatures, as having helped provide the sector with the necessary confidence to transition quickly during the pandemic. And although it is not the Commission’s role to be involved in the kinds of immediate decisions the government has faced over the past 18 months – its “raison d’être is consultation” – he feels it plays a vital role in reflecting on those experiences and thinking about “how we can make the law more resilient in future”.
We’ve identified some significant areas of property law that look like they are really in need of review
The 14th programme
That kind of thinking has played into the Commission’s preparation of its “kite-flying document”, outlining potential ideas for projects that could become part of its 14th programme.
“We’ve identified some significant areas of property law that look like they are really in need of review,” Hopkins says. “Commercial leasehold as a whole is an area that we heard about at the 13th programme consultation, but we didn’t have the agreement from government we needed to take it forward at that stage.”
He now believes there is “more of an imperative for reform”, as recognised by the government in its call for evidence ahead of its own review of commercial leasehold later this year. “In the same way that we’re seeing with residential leasehold, commercial leasehold may have the potential for a similar approach,” Hopkins says. “You may find us and the government both doing work on different aspects, towards a common goal.”
Hopkins says the Law Commission has found a lot of “common ground” between the landlord lobby and the commercial tenant lobby on the areas in need of reform, citing the controversial contracting out procedure under the Landlord and Tenant Act 1954 as one example. “That procedure was described to us last time around by one person as a pantomime. So that’s an example where clearly there is a point within the Act which isn’t serving the landlord’s or the tenant’s interests.”
Such a review could involve leaving the foundation of the Act in place but streamlining the contracting out procedure. Or it could be “much more wide-ranging”, asking whether security of tenure is still the right starting point, depending on the consultation evidence.
The Commission has also identified “new and emerging” work, including environmental concerns. “A whole range of topics have some potential there,” Hopkins says. “There is an overarching question as to the relationship between property rights and environmental objectives. What do we do when a property right is telling you that you want to do one thing but an environmental objective is telling you that something else ought to be done?”
The Commission has heard about difficulties in introducing changes to make commercial leases more environmentally friendly – “the so-called greening of leases” – and Hopkins sees value in understanding how landlord and tenant law can operate more effectively to encourage and facilitate change “rather than being seen as a barrier”.
Similarly, the Commission has identified potential projects relating to technological advances, including electronic deeds, digital justice and automated decision-making. “While most of our work is looking at changing the law to respond to things that are already happening, there is more work to be done in thinking about how the law can be put in place to enable new technology to work effectively,” Hopkins says. “[That way] the legal regime is in place before the technology is used, rather than waiting for the technology to cause the disruption and then getting the law to catch up.”
The Commission needs you
The topics identified by the Commission are far from exhaustive – which is where EG readers come in.
“When we launch a programme consultation, we highlight the areas that have been raised with us already,” Hopkins says. “But there may well be lots of issues that haven’t come to our attention yet. If you know something isn’t working, don’t assume that we know – and don’t assume that somebody else will tell us. You are the ones using the law on a daily basis. You are the ones who are really well placed to tell us what needs to be reviewed.”
This is your opportunity to have your voice heard – and to identify the next worlds for Hopkins and the Commission to conquer.
Candidates for reform
Hopkins shares his thoughts on more potential projects for the Law Commission’s 14th programme of law reform
- The Landlord and Tenant (Covenants) Act 1995 and authorised guarantee agreements – The delightfully named “AGA saga”. What we’ve heard so far is general agreement that the Act itself is doing its job, so we are not looking at a fundamental review. We are looking potentially at much more targeted technical changes in areas where the very stringent anti-avoidance measures are in fact operating to prevent commercially sensible agreements from taking place.
- Deeds and variations of contracts – Where witnesses are gathered in the same room or passing a piece of paper between them to sign, it’s hard to imagine anything less Covid-compliant. But how do you have an electronic deed when, for example, you then need electronic witnessing?
- The house-buying process – The big issues are around how to stop wasted costs and how to introduce much greater certainty. Law reform could take the form of looking at what could be done to oil individual cogs, or it could take the form of standing back and asking whether the problem is actually with the machine. And looking at, for example, what we can learn from other jurisdictions where people are legally committed to the purchase at a much earlier stage.
- Ownerless land – It’s an area of law that can have a real impact on individuals and communities. We’ve heard, for example, of instances where recycling sites have been abandoned because a company has become insolvent and, over the course of time, they have actually become a danger to public health.
- The UK statute book – We do have a specific role to play in the simplification of the law. Following our departure from the European Union, there is an opportunity to review areas of law and see what changes can be made so that they work better for England and Wales going forward.
Click here to read more about the Law Commission’s 14th programme, and how to submit your views before 31 July.
To send feedback, e-mail jess.harrold@eg.co.uk or tweet @EGPropertyNews
