Nature Of Easements

• Published date: 15 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases
• Law Firm: Myerson Solicitors LLP
• Author: Myerson Solicitors LLP

Easements are a key consideration for landowners and developers, as a failure to consider their implications properly may severely inhibit a development scheme.

Our blog identifies common easements, how they are created, and common forms of disputes arising from easements.

The first blog in our two-part property litigation series will discuss what an easement is, how they can benefit a piece of land, and how they are created.

What is an easement?

An easement is a right which benefits a piece of land, otherwise known as the dominant land.

This right is enjoyed over another piece of land owned by someone else - this is known as the servient land.

An easement normally allows the dominant land owner to do something on servient land, such as travel or run services over it.

This is known as a positive easement.

Examples of positive easements are:

1. Use of water pipes or drains.
2. Use of gas pipes or electricity wires.
3. Passing over a path, road or way.
4. Discharge of water into a watercourse.

On the other hand, an easement can be negative when the dominant land owner has the right to limit what the servient owner may do on the land.

An example of a negative easement is where the servient owner is not permitted to construct buildings that would interfere with someone's right to light.

Further examples of negative easements are:

1. A right of air.
2. A right of support from a building.
3. A right to receive a flow of water for an artificial stream.

How are easements created?

An easement can be created in many different ways, and we will discuss these methods below.

• Express grant by deed - an express grant of a legal easement must be by deed and executed by the grantor. This is subject to Section 65 of the Law of Property Act 1925. Easements are most commonly granted in a transfer of a legal estate or upon the grant of a lease where the new owner will enjoy a right over land retained by the transferor or landlord. An express grant over registered servient land must be completed by registration at the Land Registry. It will not operate in law until the registration requirements have been met. However, if the servient land is unregistered, the grant of an easement is not registrable, so it is effective when made.
• Statute: An easement acquired by statute is not usually an express grant. Many statutes confer easements on third-party grantees. For example, an easement can be acquired under the rules of enfranchisement, which is governed under the Leasehold Reform Act 1967...