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.
In this article, our commercial property solicitors explain what an easement is, the types of easements available and when they are typically used.
Contents:
- What is an easement?
- Typical characteristics of an easement
- What is the difference between a legal and an equitable easement?
- 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
- Easement modifications and termination
- 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. An easement is more than just a license to do something. It is a formal right that when it is correctly drafted and properly protected, will bind the two parcels of land and anyone who then buys them.
The sort of rights that will often be granted include rights of way or the right to use services that run through someone else’s land. Less often, they can be expressed to be negative and protect the right to ‘have something’ from someone else’s land; these include rights to light. This is discussed in more detail below.
Typical characteristics of an easement
In order for a right to be an easement, it must have all of the following characteristics:
- There must be a piece of land with the burden of the right (over which the right is exercised) and a piece of land that benefits from the right
- An easement must be linked to and benefit the land it is being granted over. It can’t just be a personal right, it has to relate to that parcel of land
- The two parcels of land must be owned by different people
- The right must be the sort of right that is capable of being an easement as not all actions are. A good example of this is that you cannot have an easement that gives you exclusive right to use land, so you cannot have an easement for the sole use of a car parking space
What is the difference between a legal and an equitable easement?
Whether an easement is equitable or legal will depend on the way in which it was created and whether or not the necessary legal formalities were followed afterwards.
An easement that has not been protected by registration or an express easement that hasn’t been made in a deed would then be an equitable easement as the necessary formalities haven’t been met.
The reason this matters is because of the differences in the ways the legal and equitable easements bind subsequent owners.
A legal easement will bind any purchaser of the land.
An equitable easement will only bind a purchaser under limited circumstances and this is a very technical area.
What is the difference between a positive easement and a negative easement?
Positive easements: A positive easement is one which allows the landowner with the benefitting land to perform an act on the other landowner’s land or to use something on it.
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
The impact this will have on the land burdened with this right will vary. It may prevent or restrict development or alteration of land and buildings on it for example. It may therefore also have an impact on value. It may make the land more difficult for its own owners to use. Conversely, benefiting from rights such as these may be a real boon to the owner of the land with the benefit and may be the only reason that land is able to be used for its specific commercial use.
How is an easement created?
Express grant by deed: Easements are most often created deliberately by the parties entering into a deed to that effect. They can be granted as part of a transfer of land (in a Land Registry form TR1 for example) or in a lease where the parties are granting rights to one another. Alternatively, they can be created in an entirely separate deed between landowners and not form part of a winder transaction.
Implied grant: The grant of an easement can be implied where there is a sale or disposal of part of a parcel of land which is subject to an easement. Other forms of implied grant include:
- By reason of necessity – often a right of way. These frequently arise where there is a disposal of part of a title where there is no other way of accessing the land
- By common intention of the parties – these are easements necessary to give effect to the way in which land which is being sold (or retained by the seller) is intended to be used
- Under the rule in Wheeldon v Burrows – this applies where land is sold in parts. It turns things that could have been easements when land was owned by on landowner into easements when land is separated into different ownership
- Under S62 of the Law of Property Act – this statute 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
In reality a lot of these methods of creating easements overlap and are relatively similar which can be confusing. 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.
- Prescription: easements can be acquired and claimed if a landowner has done something on another person’s land for a long period of time without interference. This is a very old doctrine of English Law. Generally speaking, an easement may be acquired where:
- The owner or occupier of land has used another piece of land in a way that is able to be an easement
- The use has been without force, without secrecy and without permission
- There is a landowner able to grant the easement and one able to be burdened by it
- Had it been granted expressly, then it would have been able to be an easement; and
- There is no other obvious explanation for the use other than the presumed grant of an easement
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; and
- Whether the right is openly being used and exercised at the time of the sale
As, it will really depend on your specific circumstances.
Easement due diligence
The principle of ‘caveat emptor’ or ‘buyer beware’ applies to all buyers of property in England and Wales. As such, your commercial property solicitor will always advise you to do a proper due diligence so that you know exactly what it is that you are buying or taking a lease of.
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 instruct your solicitor to query. 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.
You should also check the property’ registered title carefully. Is there anything registered against it that looks like it could be an easement or could contain easements? Your commercial property solicitor should check everything listed on the title and read through all of the documents referred to in it (such as old transfers). Are there any leases registered against the property?
Solicitors use the Commercial Property Standard Enquiries to find out more information about the land and this includes questions about third party rights over the property. In addition to this, they will raise property specific enquiries. As noted above, let your solicitor 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 (e.g. property left on site that isn’t the owners, passage ways or roadways that look like they cross onto someone else’s land).
If appropriate your solicitor will 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
Buying land and property that is subject to easements is risky because easements can impact on its use, condition and value. Once you know what easements exist you need to evaluate:
- Can I still use the property for what I had planned? Will I ever be able to extend the property? Does this prevent development in the future?
- Do the rights that exist risk there being damage caused to it? Will this cause problems for me when I use it? Will there be additional costs?
- Are the rights likely to have an impact on the value of the property now or in the future? Would it put off prospective buyers? In relation to this you should speak with a surveyor who will be able to advise.
Conversely, if you are buying land which has the benefit of an easement then this can turn property into a much more useful asset. Having the right easements can enable a parcel of land to be developed and enable it to be connected to services like water. It can also stop it from being landlocked.
Easement modifications and termination
Generally speaking, an easement that has been created by deed must also be terminated by deed and this will require the agreement of both landowners. Similarly, an easement can be modified by deed also; again by agreement. 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.
Other ways that easements can be brought to an end include:
- Where the two titles are owned by the same person (unity of ownership); and
- Implied release. There are a few ways this could happen:
- abandonment;
- operation of law – expiry of a fixed term, or by statute.
Legal processes and considerations for modifying or terminating easements
Any changes to a deed of easement will need to be recorded by deed and that deed will need to be lodged at the Land Registry to update the registered titles.
Where an easement is for a fixed term, it will expire automatically at the end of this term, likewise where it ends as a consequence of statute. Where an easement expires due to abandonment there is more room for argument. 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.
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.
Resolving easement disputes through negotiation, mediation or litigation
If you have a deed, the first port of call is to refer to that document as they will usually contain a dispute resolution mechanism.
If this isn’t getting you anywhere or there is no deed, then interference with an easement gives rise to a private nuisance. 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.
If the court finds that there has been an interference then they are able to grant the following remedies:
- Declarations that the easement still exists and is valid,
- Injunctions,
- Damages; and/or
- abatement
Summary
The world of easements can be a confusing one! Done well, an express easement can turn an awkward parcel of land into a useful one that can be used for a range of commercial uses. There are also mechanisms that enable landowners to claim rights where they don’t already exist on paper.
Due to this area being so technical, it is wise to instruct your commercial property solicitor at an early stage to assess your needs and plan with you how best to make your land work for you.
