Easements – Don't Let Them Be A Burden!

It is no secret that sought-after areas with development potential in the UK are densely populated and that securing land is increasingly difficult with demand outstripping supply. Many "infill" development sites rely on access or services being provided via land owned by third parties. The need to properly check that the development has both sufficient rights for the proposed use and is not adversely affected by easements is critical.

Whilst the existence of an easement benefiting or burdening land may at first seem benign (as is often the case) it is vital that a site is fully investigated at the earliest given opportunity to ensure the full effect is understood and, in particular, prior to incurring significant cost in terms of funding, planning and commercial negotiations.

What is an easement?

An easement is a legal right benefiting a piece of land (known as the "dominant land") which allows a landowner to use another piece of land (the "servient land") for a particular purpose.

An easement can be granted by one party to another or it may be reserved by a party for themselves.

Some of the most common easements include, for example:-

A right of way, such as the right to pass through another person's property to gain access to your own land or a public highway; An easement for services, for example, the right to install a pipe beneath another person's land or the right to maintain electricity and telephone lines connected to your property; A right to light which grants a landowner the right to receive light through defined apertures; or A right of support for your building from other buildings or land. How are easements created?

Easements may arise in the following ways:-

Expressly granted or reserved by deed. For example, when a landowner sells part of their land and wants to reserve rights. If the land is registered then these easements will appear on the title at the Land Registry so can usually be checked easily. Impliedly granted or reserved. An implied easement may arise, for example, on grounds of necessity or a common intention at the time of the sale. By prescription. An easement by prescription may arise when one party has been using the other's land without permission but in a continuous and open manner for at least 20 years. It is not unusual for an easement to arise informally and it is therefore imperative that a purchaser fully investigates not just the paper title but the position on the ground.

How can an easement impact...