As property lawyers, we are frequently asked to investigate whether a property has a particular right (e.g a right of way, or a right to connect to existing services) over another property. In legal terms, we are being asked whether the property has the benefit of an “easement” over that property.

Distinguishing between easements and other rights can be important. Once established, an easement continues to benefit the one property and burden the other property notwithstanding changes of ownership. Other rights that fall short of being an easement (e.g a personal licence) will not continue in that way.

Easements can be created in a number of different ways, some of which are more clear-cut than others. Here is a whistle stop tour:

Is it an easement or something else?

The following “test” has been established[1] to classify those rights that will amount to an easement.

  • there must be land which enjoys the benefit of the right (referred to as the dominant land) and land which is subject to the right (the servient land) – the land must be identifiable
  • the easement must be linked to and benefit the dominant land – the dominant land must therefore be sufficiently close but does not necessarily need to abut the servient land
  • the dominant land and servient land must be owned by different people – where both dominant and servient land come to be owned by the same person, any easements that exist are extinguished and would need to be re-granted on a subsequent sale of part of the land, and
  • the right must be capable of being an easement – there must be a person granting the right (the grantor), a person being granted the right (the grantee), and the right must be ascertainable.

Do easements have to be written down?

The most obvious way an easement can be created is by deed – usually in a property transfer where a seller retains land and either that retained land or the land sold is granted rights over the other. A stand-alone deed of easement may also be used.

They can be implied too:

An easement can be implied in a number of different ways. Either because:

(i) it is necessary

(ii) it is a common intention of the parties

(iii) of the rule in Wheeldon v Burrows, or

(iv) section 62 Law of Property Act 1925

An easement (a right of way) has been held to be implied due to necessity where land is acquired and there is no other legal right to access the land acquired. It could also be argued that such a right of way should be implied due to the common intention of the parties – they cannot have intended that there would be no access.

If you have ever sold or bought a property where the seller keeps adjoining land, you may have noticed wording in the transfer deed which refers to the exclusion of section 62 of the Law of Property Act 1925 and the rule in Wheeldon v Burrows.

If section 62 is not excluded in a transfer of part, “easements” relating to the sold land that were enjoyed over the retained land at the time of the sale can be deemed to be included in the transfer without mentioning them.

Similarly, the rule in Wheeldon v Burrows can imply easements that are continuous and apparent (e.g a track evidencing a right of way) and are reasonably necessary for the enjoyment of the land.

…or claimed because of long use

It may be possible to claim that an easement has been acquired by long use (the legal term is prescription) where it has been used for a long period (usually 20 years) without permission, secrecy or use of force. If successful, any prescriptive easement would only relate to the nature of right claimed. For example, if a prescriptive right of access to a house was established, that right would not apply to enable access to any subsequent redevelopment of the house into commercial offices.

Granting easements by deed is clearly preferable because a well drafted easement creates certainty. However, both sellers and buyers should be aware of the other ways of acquiring rights. Sellers should be aware of rights that may be claimed over their land and may need to disclose them on a sale. Buyers should check that rights they think exist because they can be seen “on the ground” are easements that they can rely on. Any such rights ought to be checked against the property title.

What services do we offer in this field…or building plot?

-We can check the current rights by review of the title and any further information available

– If agreed between adjoining owners, we can document new rights or vary existing rights

– We can document the agreed provisions on any sale or purchase, particularly sales of part.