Easements

What is an easement in land law?

An easement is the right to go onto someone else’s property and use it in a specific way. There are many types of easement, including:

• Rights of way 
• Right to light
• Rights to park
• Rights of support (from a neighbouring property)
• Rights to lay, connect to, or use drains, pipes, wires or cables (to allow utilities serving your property to pass through or under someone else’s land – these rights are very common in new build estates)
• Rights of access to a neighbouring property (usually for maintenance)

Unfortunately, disagreements over easements can quickly spiral into full-blown neighbour disputes. This is because they are tied to the land and not to a specific person. They transfer to the new owner if the property is sold, and neighbours are often not aware of what rights exist and what they can or cannot do with regard to each other’s land.

How would I recognise an easement?

Easements have four features that distinguish them from other rights over land, such as leases or temporary personal permissions (e.g. giving someone the right to park in your garage for a few weeks):

1. Every easement is linked to two pieces of land. The “dominant tenement” is the land that benefits from the easement and the “servient tenement” is the land which is subject to the easement. You must be able to identify both pieces of land.
2. The dominant and servient tenements must be owned by different people. You cannot grant an easement over land you own.
3. The easement must benefit (or improve the enjoyment of) the dominant tenement in some way. This could be by providing access, light, drainage or support for a building.
4. The easement must be well-defined and not vague. For example, a right to a “beautiful view” is not certain enough to be an easement.  

Legally speaking, each of these features is quite technical. There is a lot of case law around the meaning of each element and how to prove them. Even if a right seems clear to you, it may not meet the standards of a legal easement. This is why it is essential to seek the advice of an experienced easement solicitor if you are involved in a dispute. 

How are easements created?

A legal easement can be established in various ways. The three most common ways are:

• Express grant of easement – This is when the easement, and the rights and obligations that come with it, are set out in a written legal document. This could be a Deed of Grant, a clause in the transfer deed when land is sold, or occasionally in a will.
• Implied grant of easement – Implied easements occur when an easement is not explicitly mentioned in the legal documents, but it can be inferred from the circumstances. ‘Quasi easements’ and ‘easements by necessity’ fall into this category. Quasi easements occur when a landowner uses one part of their property to benefit another part, which can then become a formal easement if the land is later divided and sold. An easement by necessity is exactly what it sounds like — if there is no other way to get from your property to an access road, a right of way over neighbouring land may be implied.
• Prescriptive easements – This is when someone has used an easement for a certain period (a minimum of 20 years) without permission, and they have done so openly, continuously and without interruption. The law presumes that an easement has been created in these circumstances.

How do I know if my property has an easement?

The easiest way to find out if your property has any easements is by checking the title deeds. The Land Register (for registered land) or the title deeds (for unregistered land) should include any express easements that have been granted.

Implied rights and prescriptive rights are more difficult as they are not written down. In these cases, it is best to consult a specialist solicitor. An easement specialist will review your property’s history and investigate whether you or your predecessor have been using any rights over neighbouring land, and if so for how long. 

A solicitor can also advise you on how to properly register any unregistered easements with the Land Registry.

What are easement disputes?

Neighbours can disagree about every aspect of an easement — whether one exists, whether it has expired, what it allows, how it is used, and whether it is still needed. Our specialist easement disputes solicitors deal with all types of easement disputes. The following issues are the ones we see most frequently:

• Disagreement about whether an easement exists.
• Disagreement about the route of an easement.
• Interference with the easement such as blocking a right of way with a fence or gate.
• Misuse of an easement such as parking a truck on a driveway instead of a car.
• Disputes over the cost of maintaining a shared drainage system or right of way.
• Planned development of the servient land that would require changes to the easement (e.g. re-routing a right of way or an extension that may block a neighbour’s right to light).
• Intensification of an easement, which is where the easement is used for more than was originally intended. For example, a block of flats is built on land that previously held a single house, which adds additional traffic to the access road beyond what the original easement anticipated. 

The first step in any type of neighbour dispute is to communicate respectfully with the other party and try to come to a mutual agreement. However, since easements are so complicated, it is a good idea to speak to a specialist easement lawyer first.  We can help you open discussions with your neighbour without accidentally giving up any of your rights.

What happens if you breach an easement?

If you breach the terms of an easement, the other party may take legal action to enforce their rights. This may include:

• Applying for an injunction to stop the interference or misuse.
• An abatement order to, for example, remove any obstructions.
• Claiming damages resulting from the breach.

Bear in mind that not every easement dispute will give rise to a cause of action. For example, a trivial interference with an easement (e.g. reducing the size of a large turning circle by 5%) is unlikely to  be considered a breach. 

Each case is unique so it is best to seek legal advice as soon as you can. An experienced solicitor can help you resolve the issue amicably, using techniques like mediation and negotiation, before it escalates into a costly legal dispute.

Do easements affect property value?

Yes, easements can affect property value. The existence of an easement may limit what you can do with the servient tenement and thus make it more difficult to sell. On the other hand, some easements may increase the value of a dominant tenement by providing beneficial rights.

Many things can impact the value of a property, however, so it is not possible to give a blanket answer about the impact of an easement on property value.

If you are creating a new easement, or releasing your easement rights, in many cases there will be money changing hands. The amount you pay will depend on the type of right and how much the values of the respective properties would rise or fall as a result of the easement. We recommend that you instruct a professional valuer to assist with this.

Can an easement be removed?

An easement can be removed but it is not always easy to end these rights.

The simplest approach is where both parties agree to terminate the easement and enter into a deed of release. This will extinguish the easement so it cannot later be revived.

There are other, less common ways of terminating an easement. These include abandoning the easement in a way that is obvious and permanent, or by “merger” where the dominant and servient tenements are owned by the same party. 

In some cases, an easement may be removed through a court order if it can be proven that the easement is no longer needed or relevant. This can be a complicated legal process, so it is best to seek professional advice before taking any action.

How we can help

Osbornes has a highly successful property litigation department and our in-house experts can act quickly to protect your interests, guiding you through this complex area of law in plain English. We are:

• Regulated and monitored by the Solicitors Regulation Authority
• Members of the Property Litigation Association demonstrating best practice and technical expertise in this area
• Rated one of The Times Best Law Firms
• Transparent on fees, providing clear cost advice from the outset.

To speak with one of our specialist easement solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811