An easement is a right that one area of land (the benefitting or “dominant” land) has over another area of land (the affected or “servient” land). Easements may be positive, giving a right to do some act on the servient land (for example a right of way or a right to run services) or negative, a right to receive something from the servient land (for example a right of light, air or support).

These rights can be extremely significant, both for the benefiting and the affected land: for example, a right of way may provide an access route, without which the benefiting land would be substantially less valuable, while a right of light may prevent building work from being carried out on the affected land, drastically reducing the development potential. Interference with an easement is a trespass and the remedy is generally removal of the interference (rather than damages) so care must be taken before doing anything which may affect the exercise of an easement, particularly building over it.

Is it an easement?

There are four requirements that must be met for an easement to be created:

  1. There must be dominant and servient pieces of land: a right will only be an easement if it is for the benefit of an area of land.
  2. The right must “accommodate” the dominant land. This means it must be of benefit to the land itself, not just to the person who currently occupies the land.
  3. The dominant and servient pieces or land must not both be owned and occupied by the same person.
  4. The right must be capable of being granted by deed so must be of the type of right capable of being an easement and must be sufficiently definite.

It is helpful to look at some rights that do not amount to easements – the legal nature of the right is important because the rights and obligations of the land owner, of the beneficiary of the right and of the successors in title to each party are different for other types of right:

  • Public rights of way can look a lot like easements on the ground: if all you can see is a footpath running over the land it’s difficult to determine what sort of right you are dealing with. However, a public right of way does not meet the first requirement as there is no benefiting land.
  • Where the right is of benefit to a person, rather than to the land, it will be a personal right rather than an easement as it does not meet the second requirement. For example, Smith owns a house which is separated from his grandmother’s house by Brown’s field. Brown agrees that Smith can walk through his field in order to visit his grandmother. This right is of benefit to Smith, but it is not of benefit to Smith’s land.
  • There is a fine line between easements and occupational rights (leases and licences). An exclusive right to park cars in a defined location may be described as an easement, but could be construed as a lease or licence.

How are easements created?

Legal easements may be created by deed, by implication or by prescription (long use). They may also be conferred by statute. It is important to be aware that once an easement has been created, it is just as legally valid regardless of the means of creation.

By deed

This is the most certain way to create an easement as the dominant and servient land can be clearly defined and the scope of the right set out. However, just because the deed says that the right is an easement doesn’t mean that it is if it doesn’t meet the four requirements, or if the right actually amounts to a lease.

Easements created by deed may be:

  • Contained in the sale of part of a freehold property: this is the usual way in which freehold easements are created – when a seller transfers part of his land he will often need to grant rights over his retained land and reserve rights over the land he is selling.
  • Granted in a specific deed that just deals with the rights themselves: this may happen where, for example, someone wants to put in new drains that run across someone else’s land.
  • Granted in a lease, where the landlord grants rights to a tenant over other land that he owns, or reserves rights to himself over the leasehold land. Where easements are granted in a lease over land which falls outside the demise they will continue to affect that land even if it is sold off by the landlord (provided that they are properly protected).

Implication

An implied grant or reservation may occur when part of a title is sold off. Ideally the parties will have expressly granted or reserved any easements that may be required, but when this isn’t done they may be implied in by necessity, common intention, the “rule in Wheeldon v Burrows” or by s62(1) Law of Property Act 1925. However, the majority of transfers specifically exclude the operation of the implied grant rules (on the basis that this gives certainty), so it’s unusual to come across these in practice.

Prescription

Where an easement is created by long use this usually means 20 years open use without challenge or interruption and without asking for or being given permission. In some cases longer periods are needed, but this is the period that generally applies to rights acquired between two private landowners.

Limitations on easements

An easement can only be used to the extent, for the purpose and in the manner of use for which it is granted and is subject to any specified limitations on use. For example:

  • If you own a large plot of land but only a part of that land benefits from a right of way over neighbouring land, you may not be able to use that right of way in order to access the non-benefiting parts of your land.
  • If a right of way over a road is specified to be for access on foot only, you cannot drive a car along it.
  • If a right of way is for use during daylight hours only, you cannot use it in the dark.

The scope and any limitations are usually relatively easy to determine where the easement has been expressly granted but can be more difficult for an implied easement or one created by long use.

How long do easements last and how do they die?

Easements are usually permanent, though they can be granted for a fixed period (either because they form part of a lease or because they are specifically granted for that period).

There are three main ways in which an easement may come to an end: by express surrender, abandonment or common ownership.

Express surrender

This needs to be done by a formal deed and all the owners of a right need to surrender it. If you want to obtain an express surrender of an easement, particularly one which prevents a large development, you can expect to pay a large sum for this.

Abandonment

Abandonment takes place when the owner of the land with the right gives it up. It is not enough that the right has not been used for a long time. There must be evidence of a positive intention by the owner of the right to give it up for good. The fact that it’s not currently in use, or that the current owner of the dominant land isn’t aware of the right, will not be sufficient.

Common ownership

This means that both areas of land have been in common ownership at some time since the right was granted. If they have, the right will have died automatically. If the areas of land are separated again, the right does not revive.

Practical considerations

If you are acquiring land, particularly when you intend to develop it, it’s essential that you are aware of the different rights that affect and benefit that land, and that you understand the nature of these rights. You need to think about the following points:

What rights exist?

  • What are you planning to do with the property? What rights do you need, do these already exist and are they extensive enough? Does any surrounding land have the benefit of any rights which many prevent you from doing what you want?
  • From an inspection of the property, do there appear to be any rights being exercised that you have no documentary evidence of? Are these easements or are they some other kind of right (eg a public right of way)?
  • Are there any limitations on the rights that mean they aren’t sufficient for purpose?

What land is subject to the right?

  • If the easement was granted by deed, exactly what right was granted and over what land? If it was acquired through long use, what land was it acquired in respect of?
  • Does the right as created look different from what’s nowon the ground? How long has it been different? For example, the deeds show a right of way along a defined route, but the road on the ground is different – where is the easement?

What land has the benefit of the right?

  • It can sometimes be difficult to establish exactly what land has the benefit of a right. For example, it was common in old conveyances for a right of way to be reserved for the benefit of the Seller’s retained land without anything in the deed showing what land this was. However, so long as the land was clearly definable at the time, this will still be a valid easement even if you, as the owner of the land the right crosses, cannot easily find out what land enjoys the right.

How can you get rid of rights?

  • Are there rights set out in deeds that there is no longer any evidence of on the ground? If so, can you demonstrate that the right has been abandoned?
  • Even though it appears that a valid, registered, easement exists, has the dominant and servient land ever been in common ownership? The Land Registry won’t remove easements unless they are expressly asked to do so, so it is often worth checking this.
  • If you can’t show abandonment or common ownership, can you negotiate a surrender of the right? Be aware that you’re likely to have to pay for this!