02 July 2020

Rights exercised over a piece of land or property for the benefit of another (also known as easements) exist in a variety of forms.

An easement could, for example take the form of:

  1. a right of way exercised on foot or in a vehicle 
  2. a right for drainage pipes or other service media to pass over or under land 
  3. rights of access for maintenance purposes. 
  4. a right to receive light.

The law relating to easements is vast and often complex. This article will provide an outline of some methods by which easements can be created.

In order for a right to be classed as an easement, certain characteristics must be satisfied. For example there must be a piece of land which takes the benefit of the easement (known as the dominant land) and a separate piece of land over which the right is exercised (called the servient land). The right must benefit the dominant land and burden the servient land and not be of purely personal benefit to the land owner. Further, the two pieces of land must be within different ownership, and it must be possible to grant the right, in other words it must be a right to do or carry out a positive act on the servient land. 

The first example of easement creation, which is perhaps the most obvious, is by deed. This could be either in a separate standalone deed or within a larger document as part of a disposition such as a lease or in a transfer deed on a sale of a property. If granted from a freehold or leasehold estate, an easement by deed will operate as a legal interest in land but only once registered on the title at the Land Registry. Until such time as the registration is complete, the easement will take effect as an equitable right. If the servient land is not registered the deed will be effective when it is dated It is not possible to register a legal easement against unregistered land. (An equitable easement can be registered as a land charge if created post 1925). A caution against first registration of the servient land could be lodged to protect the dominant land owner, so that when an application is made to register the servient land, the easement could be noted at the same time.

Rather than formally granting an easement by way of deed, it is also possible to acquire an easement through long use under the doctrine of prescription. The law relating to prescriptive easements is lengthy and not always clear, but as a brief explanation if a right is exercised over another piece of land for a certain period of time, a claim to a prescriptive easement may arise. 

The Prescription Act 1832 (PA1832) allows for two forms of prescription based on either 20 or 40 years use. Such use must (along with other criteria) be exercised without secrecy, force or permission. Therefore if permission is given (either orally or in writing) by the servient land owner, a prescriptive claim can be defeated. This is not always the case however and providing oral or written consent and its timing can have differing effects.

Certain circumstances prevent the establishment of a prescriptive easement, one being where land is let. If a right is exercised over let land, unless it was exercised before the land was let a prescriptive right cannot arise.

One point to note is that the criteria for establishing rights to light under the PA1832 varies to some extent when compared to other rights. For example oral consent does not defeat a right to light claim. Also, it is possible for a tenant to acquire a right to light for their own benefit.

In some cases, an easement can, under several different headings, arise by implication. 

One such example being by necessity. On a sale of part of a piece of land, if access to the land being sold is only available over the seller's retained land, (to prevent it being landlocked), an easement implied by necessity can arise. 

However, if on what becomes the seller's retained land there is an existing access, the easement would more likely arise under the rule in Wheeldon v Burrows. If an easement is (amongst other points which must be satisfied) apparent it can arise under the rule in Wheeldon V Burrows. The easement must also be necessary for the reasonable enjoyment of the dominant land.

Easements can also be implied under the heading of common intention. If it can be demonstrated that it was the common intention of the parties involved, as to the use of the land in question, and an easement is necessary in order to execute such common intention.

A piece of land is sold for development purposes, for example, and the only route for connection to mains services is to pass service pipes/cables through the seller's retained land. No specific rights were granted in the transaction documentation. However an easement could be implied by common intention as it was intended that the land would be developed and therefore services would be required.

As a landowner, it is prudent to review title deeds as a reminder as to what easements (if any) affect the land and are noted on the title (or which the land benefits from). Be alert to evidence on the ground of other easements being exercised which are not documented and consider the steps which can be taken in order to prevent a prescriptive easement arising. 

Finally, if selling part of a landholding, consider (bearing in mind the intended use after sale) any easements that will be necessary for the benefit of the land being sold over the land being retained, or easements which will need to be reserved for the benefit of the seller's retained land over the land being sold. Whilst easements can be created by necessity or common intention, documenting matters at the outset is preferable in order to avoid potential disputes in the future.

For further advice on easements please contact Ruth Lambillion or another member of the Birketts’ Agriculture and Estates Team

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.