Nature Of Easements ' Part 2

• Published date: 13 September 2023
• Subject Matter: Media, Telecoms, IT, Entertainment, Real Estate and Construction, Transport, Rail, Road & Cycling, Real Estate, Hotels & Hospitality
• Law Firm: Myerson Solicitors LLP
• Author: Myerson Solicitors LLP

The second property litigation blog in our two-part series will consider what happens when an easement is interfered with and what constitutes excessive use of an easement.

We also review some case law which demonstrates how the Courts may interpret easements.

Who do they bind?

A legal easement, created by deed or statute (most commonly created on a transfer form), will provide that the right will be granted to a freehold estate or for a term of years.

Prescriptive easements that have been used for more than 40 years also take effect as a legal easement, but in practice, this does not happen often.

If the servient land is registered at the Land Registry, the legal easement must also be registered; otherwise, it will be equitable only.

A legal easement will bind all purchasers, whereas an equitable easement will only bind a purchaser who has knowledge, and this can be challenged.

Interference with an easement

Interference with an easement gives rise to an action for a private nuisance. The party claiming the interference of an easement must be able to show:

• That they are entitled to the benefit of the easement;
• The nature, extent and scope of the easement; and
• That the interference with the easement as defined is of a substantial nature. The interference does not have to amount to the total destruction of the easement, but a trivial impact on the use of the easement will not give rise to a cause of action.

Examples of interference include:

• Obstructing a private right of way in certain circumstances For example, interferences may arise from placing numerous gates throughout a short route or merely from locking a gate or door.
• If your neighbour has a right of drainage through pipes on your land, you must not build over them in a way that makes repairing or maintaining those pipes difficult.
• Rights of light can be interfered with when high-rise buildings are built; therefore, these issues will need to be dealt with prior to development.

The remedies for interference with an easement include:

• Damages.
• Injunction from Court.
• Declaration from the Court to confirm the existence and extent of the easement.

Excessive use

An easement must not exceed that which it was granted for or acquired.

Broadly, the use of an easement can be considered in three different but overlapping ways:

• The nature of the use.
• The purpose of the use.
• The amount of the use.

The three aspects are frequently looked at in the light of the character and identity of the dominant land.

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