Easements: an important but often overlooked aspect to consider when developers acquire land for redevelopment.
What is an easement?
An easement is a right that benefits a piece of land. The land that has the benefit of the right is called the dominant land. When this right is enjoyed over another parcel of land (known as the servient land) owned by a third party – an easement may have been created. An easement can include but is not limited to: rights of way, rights to drain or rights of access (this list is not exhaustive).
An easement has specific characteristics. These are:
• There must be dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised).
• The right must benefit/accommodate the dominant land.
• The dominant and servient land much be owned by different persons.
• The right must be capable of being registered at the Land Registry.
The accidental creation of an easements
The creation of easements is rather complex and, on occasion, they can be created accidentally (depending on your point of view!) via the legal doctrine of prescription. This is when the owner of the dominant land exercises a specific right for example: a right of way over a footpath passing through a field that has been used for a number of years without interruption by the landowner of the servient land. The right needs to have been exercised for a long period of time. For the doctrine of prescription to apply, this is usually 20 years. It is at this point that the owner of the dominant land could apply to the Land Registry to have the easement noted on their title.
How do easements impact on development land?
It is often the case that developers will acquire a parcel of land with the intention of developing the land with the new properties then being sold on to third party purchasers.
It is key for a developer, prior to purchasing the site, to establish whether they can (and whether their successors in title can also):
1) Access the site either on foot and with vehicles (ideally from an adopted highway).
2) Use and, if necessary, lay services (such as gas, electricity and water) to the site.
It will be the developer’s legal team’s responsibility to ensure that their client can access the site and that their client can undertake whatever works they need too in order to carry out their intended developments and that the easements are suitable for the intended use of the land. If the necessary easements aren’t in place, this will form part of the negotiation and may very well impact on price.