An easement is a right which is enjoyed by a landowner over someone else's land and is a valuable property right. Easements can be essential to the landowner's use of their own land.
Easements have a number of essential characteristics:
1. There must be dominant land and servient land
There must be land which enjoys the benefit of the easement (the dominant land) and land which has the burden of the easement (the servient land). Both the land benefiting from and the land subject to the easement must be properly defined and precisely identifiable.
Problems arise where the Land Registry is not able to identify the extent of the benefiting or burdened land. Best practice is to define the benefiting and burdened land by reference to an accurate plan which meets the Land Registry's requirements. You should agree the extent of the land at the stage of negotiating heads of terms.
2. The right granted must accommodate the dominant land
This generally means that the right granted must be of benefit to the land itself, rather than to the current owner who occupies the land.
3. The dominant and servient land must not be in common ownership
If the two pieces of land come into common ownership then the easement will be extinguished.
4. The right must be capable of forming the subject matter of a grant
All legal formalities must be complied with, the grantor and grantee must both have capacity to grant or acquire the right and the easement must be clearly defined. The right granted should not be too wide or too vague.
Even if you get all of this right then you still need to ensure that the easement is registered – this is to ensure that any new owner of the servient land does not take free of the easement.
Given the importance of registering the easements, on a sale or lease of part sellers and landlords should place an obligation in the contract or lease on the buyer or tenant to register the easements and to provide evidence of registration.
Keep these basic rules in mind to ensure that you gain the lasting benefit of rights over other land.