Property Lawyers Specialising in Easement and Right of Way Disputes and Creation
An easement gives a landowner rights over neighbouring land. For example, a homeowner may need the right to use a private road owned by someone else if this is the only way to access their property.
The most common types of easements are:
· A right of way
· A right of support
· A right to light
Easements are commonly used to allow utilities such as electricity, drainage, gas, water and telephone lines to cross land belonging to one owner to serve a property belonging to another owner.
Here at Bonallack & Bishop, our property solicitors act for clients in putting easements in place where they are needed. We can negotiate with landowners where necessary and draft an easement that will give your property the rights it needs.
We also act for developers and landowners in dealing with easements for new new builds. Where a dispute has arisen over an easement, we advise of rights and provide representation in resolving matters.
Looking for legal advice ? Call our Easement Solicitors on FREEPHONE 0800 1404544 for FREE initial phone advice – with no strings attached
What are easements?
An easement is a right over land that benefits other land, often adjacent to it. The land that has the benefit of the right is known as the dominant tenement. The land that is subject to the right is the servient tenement.
By way of example, where an easement exists allowing a drainage pipe to cross a property to benefit a neighbouring house, the property with the pipe crossing it is the servient tenement. The house that the pipe leads to and which will benefit from the pipe is the dominant tenement.
Characteristics of an easement
Not every right or agreement of this type is an easement. A court case in 1956, Re: Ellenborough Park established the four characteristics that must be present for an easement to exist. These are:
1. A dominant and servient tenement
The two separate areas of land must be identifiable. The easement must benefit the dominant tenement, meaning it cannot exist independently.
2. The easement must accommodate the dominant tenement
The land that is the dominant tenement needs to be benefitted by the right. The dominant and servient tenements must be linked. They do not have to be adjacent, but will need to be near to each other.
3. The owners of the dominant and servient tenements must be different people
An easement cannot exist if one person owns all of the land in question. This can be useful if it is alleged that an easement exists over land because of use for 20 years or more. If the land was not owned by two different owners for the whole of this period, an easement does not exist.
4. The right must be capable of forming the subject matter of a grant
There needs to be enough certainty as to what the easement is for it to be defined in a legal document that can be registered. In addition, both parties must have the capacity to enter into the agreement. The right that is granted should not mean that the servient owner is excluded from their land.
How is an easement made?
These rights can be created in a number of ways, including by:
· Express grant or express reservation
· Implied grant or implied reservation
· Prescription
Express grant or express reservation
The owner of land can grant an easement for the benefit of the owner of adjacent land – and this is how many are created. By way of example, when a developer builds houses, the owner of neighbouring land will commonly grant easements so that utilities can run over their land to the new properties or a road can be built for access purposes.
Easements can also be created by reservation. In this case, someone selling land would reserve the right to use an easement over the land they are selling. This is useful if someone is selling a parcel of land but still needs to cross it to reach their own property.
An express grant or reservation is created by deed, by statute or occasionally in a will.
Implied grant or implied reservation
An implied grant or reservation is one that has not been set out in writing in a deed but arises by implication. This can happen in different ways, including:
· By necessity
· Under the rule set out in the case of Wheeldon v Burrows
· By common intention
· By statute, i.e.. the Law of Property Act 1925
Implied by necessity
If a landowner sells part of their land and an easement is necessary for their use of the retained land, the right may be implied.
Similarly, where the person buying the land needs an easement to be able to use their land, for example, to access it, the right may be implied.
Easement arising under the rule in Wheeldon v Burrows (1879)
Where land is split by an owner and part of it sold, then an easement may be implied if it was previously used by the landowner, if that right has been in continuous use and where it is necessary for the enjoyment of the land.
Easement arising under the Law of Property Act 1925
Section 62 of the Law of Property Act 1925 can also imply an easement. It says that a conveyance will include and convey all easements (among other benefits) that are enjoyed with or reported or known as part of the land.
Arising by common intention
An easement can also exist by implication where it was the intention of both parties at the time of the conveyancing transaction that an easement be granted.
Prescription or continuous use
Where a particular use over land has happened over many years, a prescriptive easement may have arisen.
The use must have been continuous and ‘as of right’, meaning it was not objected to, carried out by force or done secretly. The use cannot be unlawful.
The minimum length of time is 20 years.
This type of easement cannot be extended. For example, where someone has walked or taken animals along a track for 20 years, the right cannot be intensified to allow them to take lorries along the track.
Different types of easements
There are 2 different categories – legal or equitable.
A legal easement is one that has been granted by deed, statute or will. A prescriptive easement that has been used for in excess of 40 years may also be a legal easement. A legal easement is usually registered against the title of the property at HM Land Registry.
A legal easement will bind all future purchasers of the land, whether or not they were aware of the easement.
Equitable easement – if an easement is not registered against the title of the property, then it is classed as an equitable easement.
Equitable easements will only be binding on future purchasers of the land if:
(i) The right has been registered on the Land Charges Register as a D(iii) land charge
(ii) The purchaser of the land knew the right existed
(iii) The easement is classed by what is known as an “overriding interest”, i.e. it:
a. was created before 13 October 2003;
b. the land being purchased was registered on or before 13 October 2003; and
c. the right was being openly used at the time the land was sold
Easements and rights of way compared
A right of way is a public easement giving members of the public the right to cross land.
A private easement is usually made between only two parties, a landowner and the owner of adjacent or nearby land.
Click here to read more about Rights of Way
Common disputes
Easements are often the cause of disagreements between neighbours. Common causes of disputes include:
· Disagreement over whether an easement exists, for example a right of way or a right to lay pipes
· Disagreement over the route of an easement
· A dispute over the alleged intensification of an easement, for example, using the right for more than was originally intended
· Disputes over the costs of maintaining a right of way
· Disputes where these kind of rights are interfered with, such as blocking a right of way
Disputes with neighbours can quickly escalate and it is advisable to act promptly to try and resolve matters before this happens. An experienced property solicitor will be able to negotiate on your behalf and try and find an acceptable solution.
Click here to read more about neighbour disputes and boundary disputes
Can I remove an easement from my property?
It is not always easy to end these rights. Your options include the following:
1. Owning both pieces of land. Easements require that land is owned by two different parties. By owning both parcels of land, the right can be ended. It will not be possible to put the easement back into force at a later date simply by selling one portion of the land.
2. Extinguishment or express agreement. Where both parties enter into a deed agreeing to end or extinguish the right, it will no longer exist and cannot later be revived.
3. Where the person with the benefit of the easement acts in a way that leads the owner of the dominant estate to believe that the easement is never used, then in some circumstances, the court may find that the easement has been abandoned.
How to avoid the creation of an easement
Landowners need to take care not to allow the creation of these type of rights by prescription. They are advised to make it clear that any rights to which they object are not lawful. This can be done by putting up signs telling people, for example, that there is no right of way or no right to park.
Signs need to be clearly drafted and clearly visible. They should be carefully worded to cover all types of unwanted use of the land.
The existence of the signs should also be recorded by the landowner along with the dates on which they were erected.
How our Easement Solicitors
The law relating to easements is extremely complex. Where disputes arise over rights, it can be damaging for landowners and difficult and expensive to manage. If you are experiencing issues with these kind of rights, you are strongly recommended to seek legal advice early on. So, why not give us a call today – our specialist property lawyers always offer free initial phone advice
