Check that the right is capable of being an easement, and not a personal right or a right granted by a licence.
2. Check again
Make sure that the Re Ellenborough Park criteria for the creation of an easement are met. There must be dominant (benefitting) and servient (burdened) land, the easement must accommodate the dominant land (there must be some direct beneficial impact on the land), the dominant and servient land must be owned by different persons and the right must be capable of forming the subject matter of a grant.
3. Implied Easements
Firstly, is the creation of an easement necessary for the use of certain parts of the land? For example, has there been a disposal of part of the land which cannot be accessed unless a right of way is granted over the retained land? Secondly, is there an understanding between the parties that an easement is necessary to give effect to the manner in which the sold land, or retained land, was intended to be used?
4. Don’t forget...
About prescriptive easements which can be gained through (a) the Prescription Act 1832 whereby the use must be the 20 years immediately before the action that crystallises the easement (although an interruption of up to one year may be disregarded) and (b) the doctrine of lost modern grant which means that if an easement has been enjoyed for at least 20 years without any other lawful explanation, it is presumed to have had its origin in a deed of grant made after 1189 and that deed of grant has been lost. The requirement of 20 years use is at any time in the past, as has been seen in the recent Hughes case.
5. As of right
Has the use been exercised without force, without secrecy and without permission? If so, there may be an easement; if not, an easement cannot exist. If the alleged easement has been used openly for the requisite period then there is a presumption that the easement has been enjoyed “as of right”, and it is then up to the servient owner to try to rebut that presumption through evidence. Please be aware that simple steps such as notices can be sufficient to prevent a claim for an easement for prescription. However, note that there is no obligation on the landowner to take further steps, such as writing letters or instigating legal proceedings.
6. Site visit
Make sure to visit the property on different days and at different times to see if there are any indications that certain areas (such as tracks and paths) are being used and may become subject to an easement unless their use is interrupted.
7. Does all your land benefit?
Historically, an easement which has been granted to access a particular area of land cannot be used to access other neighbouring or adjoining land (Harris v Flowers). However, be aware of some recent case law which has started to develop the doctrine of ancillary use, enabling neighbouring or adjoining land to occasionally benefit from the same right of way (Gore v Naheed).
8. Intensification of use
An easement can only be used for the purpose it was granted for and if you intensify the use, the servient land owner could seek to prevent use. However, the court will take into account the specific words used in the grant of the easement, the context in which the grant was made, the actual use which gave rise to the easement and the physical dimensions of the easement. There have been several cases recently (such as Stanning v Baldwin) where the Court have held that where there was no radical change in use but merely an intensification, a right of way would remain, except if it could be shown that the use was manifestly excessive. This leads to the conclusion that, in the absence of a change in the use of the land, servient owners will have a hard time successfully arguing an intensification of use of a right of way is manifestly excessive.
9. Check once more!
After all the above, make sure that the easement has been granted correctly. An expressly granted easement must be made by deed and executed (signed) by the Grantor. Furthermore, to gain status as a proprietary right and operate at law an easement must be registered against the title of the servient land.