What is an Easement?James Trafford
One parcel of land (referred to as the dominant tenement) has the right to execute certain acts over another parcel of land (not necessarily the owner alone), and this privilege is known as an easement (known as the servient tenement). This is one of the most popular types of easements, allowing one property’s subterranean utilities (water, drainage, gas, electricity, phone and TV lines, etc.) to travel under the land of one or more adjoining properties. The private right of way is perhaps the most well-known easement in the UK. Others include the right to light and the right to structural support.
For certain property owners, easements are critical since they might leave them landlocked or unable to utilise their property for its original purpose without them. When it comes to purchasing development property, homebuilders are especially interested in them.
- The dominant tenement has specified rights over the servient tenement; this right is called an easement.
Most of the time, when we talk about a “rightful user,” we’re talking about someone who owns the dominant tenement. However, anyone who has a justifiable reason for accessing the property is entitled to a private right of way (which could be the rightful owner, his immediate family who live there, employees who work there, or anyone visiting the land for social, business, or duty reasons). As a good example, the postman may use the private right of way while not owning the dominating property.
- The “rightful user” of the easement is typically the owner of the parcel of land, but it can also be those with a good reason, like employees of the rightful user, or the visiting postman or repair man.
Creating an easement
- Express grant
- Of necessity
- By prescription
Creating an easement can be done in a variety of ways. Using an express grant, for instance, is one option. In this scenario, a Deed of Grant or a Clause in a Conveyance Deed or a Transfer Deed may detail the conditions of the easement.
Sometimes there is no choice but to have an easement out of necessity, so when this occurs, an easement can be formed. As a result, if the road, track, or trail leading to a piece of land is the sole route between the public highway and the property in question, the route has a right of way of necessity.
A prescription may also be used to establish an easement. This occurs when someone frequently, publicly, and without the (possibly servient) landowner’s consent carries out an act that has the potential to become an easement for at least twenty years.
In order for the 20 years of usage to be “continuous,” there must be no inexplicable intervals of inactivity. For the purpose of this clause, “as of right” indicates that the use is done “without force, without secret, and without permission.”.
Prescription, in its simplest form, refers to the acquisition of a right via long-term usage or enjoyment. The Prescription Act of 1832, or the “lost modern grant,” is how to obtain a prescriptive easement.
If an expressly granted easement is included in the sale of a piece of land, the easement becomes the dominant tenement, giving it rights over adjacent property. Because of this, every parcel of land that the seller retains as a servient tenement must also be burdened with the rights reserved for the vendor’s retained piece of land.
In other words, a reservation of easement occurs when the grantor sells or transfers a parcel of land to another but also reserves an easement over that property for a specified use.
What if there are doubts about the existence of an easement?
If any doubt arises as to whether an easement exists, then the law typically sides in favour of one being in existence. The Law of Property Act 1925 explains it in the following way:
“62.(1) A conveyance of land shall be deemed to include and shall … operate to convey, with the land, all … liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance … enjoyed with or reputed or known as … appurtenant to the land or any part thereof. ”
An unlawful activity will not result in the creation of an easement. For example, a private right of way is not created by driving a vehicle through common land.
An easement is a long-term right that, in practicality, endures permanently. The easement encumbers the land of the servient tenement. The dominant tenement owner must keep in mind, however, that the servient tenement owner has a right to enjoy and develop his property in peace, as well as a right to do so legally, and the easement should not interfere with either of those rights (provided that the development caters for the easement).
As the saying goes, an easement “runs with the land,” meaning that it cannot be sold separately from the property and must be transferred to a new owner together with the land.
Now that the basics of easements have been covered, we can take a closer look at some of these rights and what benefits they provide.
Private rights of way
A private right of way form of easement is where someone has the right to pass along a privately owned road or across privately owned land where a road is not being used. His easement is the most common one found in the UK and is sometimes a point of contention in disputes.
Right to car parking
Simply put, this easement refers to the right of a landowner to park a car anywhere if it is parked in a clearly defined area.
Right of support
A wall often connects numerous city and town centre buildings, allowing the structures to support one another in a mutually beneficial way. If one of these structures were to be removed, it may have forced the neighbouring structure to partially collapse. As a result of the demolished structure, the surviving building has a right of support and is owed a duty of support by the landowner who owns the bordering property. Because of this, the owner of a building that is demolished must make good on the continuous support of the structure on the neighbouring property.
This right of support also applies to a situation where a landowner removes ground that is close to a neighbouring building, which may therefore destabilise it. Furthermore, if the ground is at risk of collapsing due to excavation in neighbouring territory, the right of support might also apply. By extension of this, there is a right of support where there are retaining walls that coincide with a property boundary.
If you are a building owner, it’s advisable to consult a chartered surveyor before demolishing a building that has a party wall, or indeed, if you are the owner of a building adjacent to the proposed demolition.
Right to light easement
The topic of the right to light is one that can be somewhat complex. With the trees that are now obstructing your light, it may be tough to establish that your neighbour should not have put them there in the first place, without a restriction covenant in place. It may be even more difficult to persuade him to take down the newly built building that is now obstructing your light.
To be clear, the right belongs to the land as a whole, not just a single structure or window on it. This means that it is feasible to demolish an old structure and replace it with a new one while still claiming a right to light via the new windows. On the other hand, if a new building is constructed that contains fewer or smaller windows than the one that it replaced, it’s unlikely that you can prove a reduction in light is a result of what your neighbour has done.
Water rights easement
The most common form of this is a right to draw water from a neighbour’s watercourse or spring. If you increase the amount of water you use, or if the natural flow drops below a level that supports your demands, you may encounter difficulties. Even if you have made preparations for a new source of water, you may have trouble resuming usage of your old water source after several years of not using it.
Right to a view?
According to Jamie Johnson, CEO of FJP Investment, “Many buyers are attracted to a particular property because of the beautiful scenery and views that it provides; indeed, it can often be the deciding factor when choosing. However, it’s important to note that there is no right to that view.” It goes without saying that, if such a right to a view did exist, it would cause major issues for landowners to develop their land and thus be a major obstacle to planning and development projects that are an important part of the economy.
However, if you reside next to an unaccommodating neighbour who maliciously plants a coniferous hedge to cause an annoyance to you, then you can probably resort to the Anti-social Behaviour Act 2003.
It’s strongly advisable to gain professional advice from a chartered surveyor when it comes to the subject of easements, or a relevant engineer when it comes to things like water rights, etc. Sometimes the existence of an easement is not so clear, and so professional advice is a must.