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A 5-minute introduction to easements

Easements

Residential Conveyancing Paralegal Natalie Clifford explains how easements can restrict a landowners development plans.

An easement is a right that benefits a piece of land by burdening another piece of land. Easements can be created in many ways and can cause problems if homeowners do not understand how the easement works, or its implications.

Characteristics of an easement

The case of Ellenborough Park [1995] sets out the main criteria, which a right must meet in order to be an easement.

  1. There must be dominant land (the parcel of land which benefits from the easement) and servient land (the parcel of land which the easement is exercised over).
  2. The easement must benefit the dominant land and cannot merely be a personal advantage to the owner of the dominant land.
  3. The owners of the dominant and servient land must be different owners.
  4. The easement must be capable of forming the subject matter of a grant and cannot be too wide or too vague.

Creation of an easement

Easements can be created by either express grant, implied grant, or by prescription.

An express easement must be created by deed.

Implied easements can arise where they are necessary for the enjoyment of a property and usually arise when one piece of land is split up and sold as many separate parcels.

Prescriptive easements can be created after a right has been exercised for the benefit of the dominant land over the servient land over a long period (in excess of 20 years), without permission or objection from or by the servient landowner.

Equitable easements

Equitable easements can arise when a right is being granted by proprietary estoppel, or when a contract to grant a legal easement is never completed.

Overriding easements

Some easements are capable of being an overriding interest. This means that even when they are not referred to on the property’s title register held at the land registry, they are still capable of taking effect and binding the land. This can include the following:

  • All legal easements existing at the time of first registration
  • Any easement which was an overriding interest before the Land Registration Act 2002 came into force
  • Implied easements and prescriptive easements

Positive v negative easements

A positive easement permits the owner of the dominant land to carry out an act on the land belonging to the servient owner. An example of a positive easement would be having the right to walk over a footpath, discharge water into a watercourse, or run cables and pipes across the servient owner’s land.

A negative easement benefits the dominant land by restricting the actions of the servient landowner. An example of a negative easement would be having a right to light, or right to air.

Being aware of easements

An easement will not always be documented on the servient landowner’s title register held at the land registry and the easement may not always be obvious. Although the seller is required to disclose non-obvious easements which they are aware of, when viewing a property that you wish to purchase, it may be worth considering the following:

  • Do you have to cross over someone else’s land to access the property?
  • Does someone else have to cross over the property’s land to access their own property?
  • Are there any signs of someone crossing over your land such as a worn grass path at the bottom of the garden?
  • How many properties are nearby? If a property close to you has a right to light, this could potentially restrict you building an extension on the property or planting trees and shrubs.

It is important that you advise your solicitor of any plans that you have for the property that you are purchasing. This is to ensure that your solicitor can advise you accordingly and so that you can discuss any problems which may have an impact on your plans for the property. For example, if you wish to erect large gates at the bottom of your drive and keep them locked, you will not be able to do this if your neighbour has an easement over your drive to access their own property.

For more information on easements and how they can affect your property, contact Natalie Clifford here.

About the Author

Natalie Clifford profile photo

Natalie Clifford

Natalie is a Paralegal in the Residential Conveyancing team.

Published: Friday 19th October 2018
Categorised: Private Client, Residential Conveyancing, Legal Services in Newcastle, Penrith, West Cumbria

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