It can be easy to get overwhelmed with the intricacies of your property development; however, it is essential to remember the importance of knowing when and why someone may have access rights, and what you can do about it.
What is an easement?
Firstly, you might be questioning what an easement is, and why do you have to be careful of it? It is not as scary as you think, but it can make life difficult for you.
An easement is a legal right that allows someone to use part of your land for a specific purpose.
How is an easement created?
If it wasn’t confusing enough, there are different ways in which an easement is created.
Here are the main types of access rights that may apply to private property in the UK:
- Express – Written into a deed or contract. It occurs when a formal agreement between landowners is created, granting easement rights. For example, there are two adjacent properties ‘A’, being the dominant tenement and ‘B’, being the servient tenement. ‘A’, does not have direct access to the main road. So, to resolve this, the owner of ‘A’, negotiates with the owner of ‘B’, for an express grant easement to grant them a right of way across ‘B’s property. This agreement would be written and documented in a deed, which is an express easement.
- Implied – Not written down but assumed due to how the land is used. It is created by necessity or by mutual understanding. E.g. For example, if a property owner sells a portion of their land but it is left landlocked requiring access; the law often implies an easement for access over the sold portion of land. This would ensure that the landlocked portion could still be accessed feasibly.
- Prescriptive – Created by long-term, uninterrupted use (typically over 20 years) without permission from the servient owner. For example, Peter has been using a path across his neighbour’s property for over 20 years to access his house. He has been using the path openly, without asking permission, and without any objections from his neighbour. If Peter proves that his use was continuous, open and without permission for at least 20 years. He could potentially establish a prescriptive easement giving him the legal right to continue to use the path.
How might they apply to me?
Easements transfer to future owners of both the benefitting and burdened properties when sold. This means that although you may think the easement no longer applies, specifically an express easement – it remains attached to the land, meaning it continues to apply once registered.
Implications
Easements are not always a bad thing. It is dependent on how it affects the use of your land. Some easements can have little to no impact, however others can restrict development, reduce privacy or potentially lower the property’s’ value. It is always worth taking the required due diligence.
Actions
The best action to take, especially dealing with a potential derailment to your development plans, is to raise enquiries during title checks. Depending on the circumstances, you can remove or change an easement.
Actions which can be taken:
- Agreement with the benefitting party- If both parties agree, an easement can be legally removed or changed.
- Abandonment- If an easement hasn’t been used for a significant period of time and is no longer necessary, it may be abandoned.
- Court order: In some cases, a property owner can apply to the courts to change or remove an easement if it is no longer relevant or fair.
- Legal challenge: If an easement was incorrectly created or does not meet the necessary legal requirements, it may be challenged and removed.
Final thoughts
Before buying or selling a property with an easement, check the title deeds. A simple resolution for a potentially annoying problem. The easements can be addressed with the advice of a competent solicitor, putting your mind at ease and reducing the negative implications to your development.
Practice guide 62: easements – GOV.UK
Glossary
Easements– It concerns the rights enjoyed by one landowner over land owned by another. (They are a very important legal interest). It allows one party to use or cross the land of another for a stated purpose. E.g. the right to have water pipes run under your land to supply a third-party house or to use your driveway to get to a third party’s door.
Landlocked property– A parcel of land that does not have direct access to a public street. It means the property is completely surrounded by other privately owned properties. This makes it inaccessible without crossing through neighbouring land. Often requiring a legal easement for access.
Servient owner- Is the owner of the land that is subject to an easement benefitting another property. It refers to the person who is required to allow the easement on their property.
Tenement- A piece of land held by an owner.