What is an easement and how are they created and used?


30 June 2021

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.

 

What does it mean to have an easement on your property?

Having an easement on your property means that a third party (an individual or a utility company for example) has a right to use your property for a particular purpose. This could be passing by foot or with vehicles over your property, or a right to pass service media for utilities on, over or under your property. An easement could also allow a neighbour to access your property in order to carry out repairs to their own property. An easement will not provide the party with the benefit of the easement with a right to prevent you from using or occupying your property (other than in a manner that interferes with the easement) and they will not have exclusive use of your property.

Is it bad to have an easement on your property?

It is not necessarily bad to have an easement on your property but depending on the type of easement, there could be an impact on your use of the property and its value. If your property is subject to a right of way, you could face disruption from the parties exercising the right. Also there could be an impact on value to your property if an easement limits the use and potential uses of your property. A piece of land subject to rights of way may have limited development potential which could affect its value, unless agreement could be reached with the easement beneficiary to vary the route. If you are buying a property always check the title to establish what if any, easements affect the property, make enquiries with the seller, and take the advice from a valuer as to whether the presence of an easement could impact on value. 

Can a property owner block an easement?

If your property is subject to an easement such as a private right of way and you try to block it you could find yourself subject to an action for private nuisance if there is a substantial interference with the right. If successful with action, the remedies can include damages (based on the loss suffered). In some circumstances an injunction could be granted to either order the party committing the breach to either do or refrain from doing something. 

How long does an easement last?

Easements are generally permanent but there are various methods of bringing an easement to an end.
There could be an express release of the easement formalised by deed. Sometimes the conduct of the parties can lead to an implied release. If an easement is not exercised for a period of time (which needs to be significant) it may be possible to imply termination of the easement by way of abandonment but this is a difficult matter to prove. If an easement is granted for a specific limited purpose, should that purposes cease the easement may be extinguished.

Does an easement reduce the value of a property?

As noted above, the presence of an easement affecting your property could impact on its value. This is not necessarily the case however and many easements exist which do not have any effect on value. It will depend on the nature of the easement.

Owning a property which does not have the benefit of adequate easements could affect its value. For example, a property which does not have a right of access over a private road where it does not about public highway would have a reduced value. 

How much should I pay for an easement?

This will be dependent upon the type of easement and many other factors. The difference in value of your property without and with the benefit of the easement should be considered and it would be prudent to consult a qualified valuer in order to assist in quantifying the value attributable to the easement in question. As well as assessing the possible increase in value to the property which will benefit from the easement, consideration will need to be given to any impact on value of the property affected by or taking the burden of the easement. This figure may form part of the value negotiated. 

What is the difference between an equitable easement and a legal easement?

If an easement is granted from a freehold or leasehold estate it is capable of existing as a legal easement. Where land is registered, and an easement is granted by deed, it must be registered over both the land subject to and benefitting from the easement in order to operate at law. If the easement is not registered it will exist as an equitable easement. In some circumstances an easement will only exist as an equitable right. An example being where a contract was entered into to grant an easement, but it was never completed. As to whether an easement is legal or equitable can mean that different remedies are available for their breach. 
 

For further advice on easements please contact Ruth Lambillion via [email protected] or 01223 326591. Alternatively, please contact 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 June 2021.

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