Easements are vitally important to anybody who owns, occupies or develops land. Whilst some easements are essential for the use and enjoyment of land, others can restrict the way land can be used.
This article is the first in a series of two which will look into the nature of easements, how they are created and ended and how they might impact on you.
What is an easement?
An easement is a right benefitting a piece of land (known as the dominant land) that is enjoyed over land owned by someone else (known as the servient land).
Usually, an easement allows the owner of the dominant land to do something on the servient land, such as use a path or run services over it. However, an easement can also prevent the owner of the servient land from using it in a certain way. For example, the owner might not be allowed to construct buildings that would interfere with someone’s right to light.
Other examples of easements include the right to use a garden and leisure facilities including a golf course, swimming pool and tennis courts.
Are there any requirements for an easement?
Four requirements must be satisfied for an easement to be made:
- There must be both dominant and servient land: a right will only be created if it benefits one piece of land and burdens another;
- The right cannot be personal: it must benefit the land itself, and not just the person occupying it;
- Different people must own and occupy the dominant and servient pieces of land; and
- The right must be capable of being granted by a deed: it must be both capable of being an easement and sufficiently definite.
How are easements made in practice?
Easements may be created by deed, implication or long use (prescription).
Deed
This is the most common way to create an easement. We recommend creating easements by deed so the dominant and servient land, nature and the scope of the easement can be clearly set out.
In practice, easements are generally created on a sale of part of land or in a lease. In both situations, it is important for the parties to consider what rights they need to use the land going forward – both on the transferred or leased land and the retained land. These rights and reservations should be included in the land transfer or lease to preserve them for future use.
Deeds are also entered into where specific easements are to be granted, such as when someone puts in new drains that run across another person’s land.
Implication
Implied easements may arise where there is a sale of part of land. Ideally, all the rights and reservations needed for both the retained and transferred land will be included in the land transfer. However in very rare circumstances an easement may be implied where it is absolutely necessary for the use of the land but has not been included in the land transfer. An example would be where the buyer’s land is landlocked and needs a right of way over the seller’s retained land.
Prescription
Easements can be created by long use. This may arise where a person has used another’s land or property continually for 20 years, in an open manner, without challenge and without asking for or being given permission.
How long does an easement last for?
Easements are usually permanent. As they attach to the land and not to a person, they pass with each sale of that land going forward.
Easements can come to an end in the following circumstances:
- Express Surrender: the owner of the dominant land benefitting from the easement surrenders or terminates that easement in a deed. If you want to obtain an express surrender, you may be charged a large sum of money for this;
- Expiry: if the easement is time limited or contained in a lease, it will expire automatically at the specified expiry date or at the end of the lease;
- Common ownership: an easement will end if the same person owns both the dominant and servient land; or
- Abandonment: a release will be implied where the dominant owner gives up the easement. A positive intention to give up the easement must be shown – it is not enough that the easement has not been used for a long time or is not currently in use.
Practical considerations – what does it mean for you?
If you are buying land, especially for development, it is essential that you are aware of any easements affecting that land and your ability to use it. It is also vital that you have the benefit of all necessary rights and easements to allow you to develop and use that land in the way you intend.
Your land is subject to an easement
If part of your land is subject to an easement, you will have to respect the easement and will not be able to use that land for anything that is inconsistent with or otherwise contravenes the easement.
Examples:
- If an adjoining landowner has a right to use a track on your land with vehicles you will not be able to build on that track and must keep it open for vehicular access;
- If a building has a right of light through a vacant or low-rise plot and you intend to develop a high-rise building on that plot, you may impede that right to light; and
- If a landowner, such as a residential developer, builds a drainage or sewage system on its land servicing its development and has reserved a right to use part of your adjoining land for a soakaway, then you will not be able to develop or use that land for any other purpose.
In these circumstances, you may need to negotiate a release or surrender of the easement. You would normally have to pay for such a release or surrender.
You need an easement
What are you planning to do with the land? You will need to consider what rights you need, whether these already exist and whether they are extensive enough as some easements are limited and may only benefit part of your land or be used at certain times.
Wedlake Bell have experts who can advise on all aspects of land and property transactions, including the grant of easements, sale and purchase of land, leases and developments. Please get in touch if you would like some assistance navigating the legal pitfalls.
The second article in our series on easements, which considers whether property which is extended or enlarged will benefit from an easement, will appear