Easements are integral to ensuring that parcels of land in England and Wales work with neighbouring land. They are a very common way of granting rights to land without changing land ownership. At the same time, they can significantly impact property development, access, and land use, making them essential for developers, investors, and business owners to understand.
Whether you’re purchasing commercial property, planning a development, or negotiating land use rights, knowing how easements work can help you avoid costly disputes and unforeseen restrictions. In this article, our commercial property solicitors break down the key aspects of easements, their types, legal implications, and how they can affect commercial property transactions.
Contents:
- What is an easement?
- Key characteristics of an easement
- Legal vs. Equitable Easements – What’s the Difference?
- What is the difference between a positive easement and a negative easement?
- How is an easement created?
- Registration of easements
- How long does an easement last and can we have one for a fixed duration?
- Does an easement transfer with the sale of the property?
- Easement due diligence
- Potential easement issues and risks
- Can Easements be Changed or Removed?
- How do I avoid easement disputes?
- Common easement disputes related to commercial property
- Resolving easement disputes through negotiation, mediation or litigation
- Summary
What is an easement?
An easement is a right granted by one landowner to another, allowing them to use or do something on their land (without transferring ownership). It’s important to distinguish easements from simple licenses agreed personally between a landowner and someone else. This is because easements, if properly drafted and protected, can remain in place even when ownership of the land changes (ie they can run with the land and bind anyone who purchases the land).
Typical rights granted by easements that you may have heard of include rights of way or the right to use services that run through someone else’s land. For example, abusiness purchases a commercial unit with an access road that runs through a neighbouring property. If a legal easement exists, the business retains the right to use the road, even if the neighbouring property is sold. Although less common, easements can also be expressed to be negative and protect the right to ‘have something’ from someone else’s land; such as rights to light. We discuss this in more detail below.
Key characteristics of an easement
For a right to be considered an easement, it must have all of the following characteristics:
- There must be two parcels of land – one benefiting from the easement and one burdened by it.
- The easement must be attached to the land itself, not granted as a personal right.
- The two parcels must be owned by different people.
- The right must be capable of functioning as an easement (e.g., a right to walk through a passageway, but not exclusive rights to a parking space).
Legal vs. Equitable Easements – What’s the Difference?
Easements can be either legal or equitable, affecting whether they bind subsequent owners.
Legal Easements: Created through formal deeds and properly registered. They automatically bind new property owners.
Equitable Easements: Arise when formalities are missing, such as registration or when express easements haven’t been recorded in a deed. These only bind subsequent owners in limited circumstances but can cause major issues if not recognised.
Example: A developer buys a property expecting they can freely use an adjoining (private) road for access, only to discover it was not formally arranged. If the owner of the private road objects to the developer’s use – the whole development could be hindered. This is why thorough due diligence checks performed by experienced commercial property solicitors is essential.
What is the difference between a positive easement and a negative easement?
Positive easements
A positive easement allows the owner of one piece of land to use or do something on another person’s land. Common examples include the right to:
- Use a water pipe
- Walk over a path or drive way
- Discharge water into a watercourse; or
- Run cabling under the land
Negative easement
A negative easement is a right to receive something from someone else’s land without interference from them.
Common examples include:
- The right to light for a building,
- The right of support from a building, or
- The right to receive water from a stream
Impact on landowners
For those whose land is burdened by rights of another, this may limit their ability to develop, use, or make changes to their own property, possibly affecting its value. On the other hand, the landowner benefiting from the easement may find it essential for their land’s use—especially for commercial purposes.
Examples:
Development Restrictions – A landowner wants to build an extension on their property, but a neighbour has a right to light. If the extension blocks sunlight to the neighbour’s windows, the project might be stopped.
Increased Costs – A property owner has a right of way running through their land, meaning they must maintain the pathway and cannot block access, even if they want to use the space differently.
A small shop relies on a right of way across a neighbouring property for delivery trucks to access the loading area. Without it, the business would struggle to operate.
Structural Stability – An apartment building benefits from a right of support from an adjoining building. If this easement didn’t exist, the neighbouring owner could remove their structure, potentially weakening the apartment building.
How is an easement created?
There are three main ways an easement can be created:
1️. Express Grant (by Deed)
A landowner formally and deliberately agrees to grant another party rights over their land, usually either as a standalone agreement or as part of a lease or land transfer.
2️. Implied Grant
- An easement may be implied in certain situations, outlined below (although in reality, a lot of these overlap and are relatively similar ).g. They are all based on the principle that you cannot grant someone the right to do something and then take away the means of enjoying that right: By reason of necessity – often a right of way. These frequently arise when someone sells part of their land, which would effectively be landlocked without a right of access across the part retained by the seller
- By common intention of the parties – when land is sold or divided, and both parties clearly intended for the land to be used in a certain way, even if no formal easement was written down.. For eg, a landowner sells part of their property, including a building designed as a restaurant. The only water supply runs through the seller’s remaining land. An implied easement by common intention arises because both parties intended the restaurant to function, and water access is essential
- Under the rule in Wheeldon v Burrows – this applies when a piece of land is divided and sold in parts. It essentially converts rights that were previously only privileges under single ownership into easements once the land is split between different owners (remember, a key characteristic of easements is that they can only exist for parcels of land under different ownership)
- Under S62 of the Law of Property Act – this law implies easements into conveyancing documents where a particular form of wording is used. The idea of this is to reduce the length of some more complicated transfers
3. Prescription:
An easement can be acquired if someone has been using another's land in the form of an easement for a long time, without their permission or interference.
Example: A company buys a commercial building that has been using a private road across a neighbouring warehouse as a delivery route for 25 years. Because the usage was continuous and unchallenged, the company may have acquired a prescriptive easement, legally allowing them to continue (even if the neighbouring warehouse decides to challenge it by that point).
Registration of easements
Easements which have been granted by deed from a registered title must be registered at the Land Registry to operate at law. This means that until an application to register them has been made, they will be equitable easements.
Easements over registered land that have come into existence via implied grant or prescription do not have to be registered. They take effect in law automatically.
There is a different system for unregistered land that is outside of the scope of this article. There is also guidance where one parcel of land is registered and one is not. As with much relating to easements, this can get very technical. You should speak to your commercial property solicitor if any of this applies to you and they will be able to advise you how best to protect your rights.
How long does an easement last and can we have one for a fixed duration?
Easements don’t generally have an expiry date and usually run with the land. However, it is possible to grant them for a fixed term as long as it is clear what this time period is. Any ambiguity about how long it is supposed to last will render it invalid as an easement.
If granted for a fixed term, then the easement will automatically extinguish at the end of it. If it is not for a fixed period, then the easement can only be terminated as described below.
Does an easement transfer with the sale of the property?
A properly created and registered legal easement will run with the property and will transfer to the property’s new owners.
Whether an equitable easement will pass to the new owner will depend on:
- When the easement was created (the relevant date is 13 October 2003)
- Whether the land was registered on 13 October 2003
- Whether the right is openly being used and exercised at the time of the sale
This is a complex area, and it is best to consult with an experienced commercial property solicitor to understand the enforceability of equitable easements.
Easement due diligence
Most people have heard of the principle of ‘caveat emptor’ or ‘buyer beware’, which applies to all buyers of property in England and Wales. As such, it’s essential to conduct proper checks and investigations (which we call ‘due diligence’) before committing to a purchase or lease. Due diligence alerts buyers to any risks or issues with the property so that you know exactly what it is that you taking on. Due diligence can performed in multiple ways, all of which are important:
Site checks
Your first port of call will be to do a thorough inspection of the property at a site visit. You should check for evidence that other people are using it. Anything you do find, you should notify your solicitor so that they can query and investigate further.. Of course, not all easements will be immediately obvious, such as drainage rights or rights to run cabling underground, but this is none the less a good start.
Reviewing titles
It is also crucial to check the property’s registered title carefully for anything registered against it that looks like it could be an easement or could contain easements (such as old transfers or leases). It can be difficult to navigate property titles, especially lengthy ones that refer to lots of different documents. This is where you need the expertise of experienced commercial property solicitors. We thoroughly check everything listed on the title and read through all of the documents referred to in it.
Raising enquiries
Solicitors use the Commercial Property Standard Enquiries (CPSEs) to find out more information about the land, which includes questions about third party rights over the property. We will also raise specific enquiries in relation to the particular property. As noted above, let us know if you suspect that third parties use the property or if there is anything on site that you think indicates that there is a right (eg property left on site that isn’t the owners, passage ways or roadways that look like they cross onto someone else’s land).
Searches
If appropriate, we also carry out a Land Charges search to see if there are any rights registered against the old system for unregistered land.
Potential easement issues and risks
Before purchasing land, it's critical to understand whether easements exist, as they can:
- Restrict use/development plans – the presence of easements might mean you cannot use the property the way you planned or restrict your ability to extend the property or develop the land in future.
- Affect property value – if a property is burdened by easements allowing others to use or access parts of the land, it might be less attractive to future buyers (as they in turn may impact their intended use/development plans).
- Lead to disputes – if their existence, validity, or use is challenged, which can extend to risks or additional costs if you cause damage to the burdened land while exercising your right over it.
Example:
You purchase a plot of land to develop into a new office building, only to find that a neighbouring property benefits from a right of access, the positioning of which conflicts with your plans/designs. Unless another route can be offered and agreed with the neighbouring property, or a feasible workaround is found, you may not be able to proceed. Similarly, you might purchase an existing residential building with plans to build additional apartment blocks on top. You later discover the planned extension will interfere with an easement that prohibits obstructing an adjacent building’s view, rendering the entire planned development redundant.
Conversely, buying land with the benefit of an easement can significantly increase its value and usability. The right easements can make development possible, provide essential connections to utilities like water, and ensure the land isn’t landlocked.
Can Easements be Changed or Removed?
Unless specified for a fixed term, easements generally last indefinitely unless:
- Both parties agree to terminate it or modify it through deed. Any deed to this effect should be lodged at the Land Registry to update the registered titles. It is possible that the person who wants to terminate or alter will be asked to may a payment for this to the party that didn’t request the change.
- Unity of ownership: where the two parcels of land come into ownership by the same person
- Implied release, which could happen in a few ways including:
- by abandonment. Sometimes it is obvious, for example where a window with a right to light has been bricked up. Other times, it may be less obvious, eg where a right of way is no longer used. If you think that your easement may have expired in this way, then you should speak to your solicitor to come up with a way in which to assess and record this just in case it is ever challenged.
- operation of law – expiry of a fixed term, or by statute.
How do I avoid easement disputes?
If you are creating an easement from scratch, then good drafting should help make it clear exactly what the rights are and what the expectations are in relation to it. Developing and fostering a good relationship with the other landowner should also help keep things working well. Being respectful and not interfering with the rights is also advisable.
If you are thinking of granting an easement to someone then think very carefully before you do and spend time working through heads of terms in detail. The aim is to come up with rights that work for both parties with the aim of limiting the risk for dispute in the future.
Common easement disputes related to commercial property
Common areas for dispute include obstruction of rights of way, stopping up access ways with gates and locks and interference with parking rights. Often the issue will be interference with rights meaning that the easement cannot be used in some way.
The party who is claiming interference must show:
- That they are entitled to the benefit of the easement,
- The nature, extent and the scope of the easement, and
- That the interference with the easement is ‘substantial’. They don’t have to show that the benefit of the easement is totally gone but it needs to be more than trivial.
Resolving easement disputes through negotiation, mediation or litigation
If a dispute arises, you should check the deed of easement or document which created the easement . These usually contain a dispute resolution mechanism. In general, the first step is negotiation or mediation, failing which legal action may be necessary. Courts can:
- Confirm that the easement still exists.
- Order an injunction to prevent interference.
- Award damages for losses caused by easement violations.
Summary
Understanding easements is essential for anyone involved in commercial property transactions. They can provide critical access and utility rights but may also create unexpected restrictions. Proper legal due diligence is key to avoiding costly disputes or development issues.
If you're dealing with easement concerns, our commercial property disputes team can help assess your situation and ensure your land works for you.
