Easements
Easements are an important part of property law that can affect the use and enjoyment of land.
They can be created through express agreements, necessity, or long-term use (prescription). They can also be permanent or temporary and significantly impact property value and use.
When buying or selling property, easements can affect the transactions. They can also lead to disputes between property owners.
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What is an easement?
An easement is a legal right that allows one person to use another person's land for a specific purpose. It doesn't grant ownership of the land but permits certain uses.
Types of easements
Easements come in various forms. They can be beneficial, providing necessary access or utility services, but they can also impose restrictions on how property can be used.
Positive easements
Positive easements grant the right to use someone else's land for a specific purpose.
They are beneficial because they provide necessary access and resources that would otherwise be unavailable.
Common positive easements include:
Type of Easement | Description |
|---|---|
Rights of Way | Allow individuals to pass through another person’s land to reach their property. |
Rights to Water | Enable the right to draw water from a source on another person’s land or to have water flow from one property to another, such as for irrigation or drainage. |
Negative easements
Negative easements restrict what the landowner can do on their property to benefit another property.
They are important for protecting the interests and enjoyment of neigbouring properties.
Common negative easements include:
Type of Easement | Description |
|---|---|
Stops landowners from building or planting in a way that obstructs natural light to a neighbouring property. | |
Rights of Support | Ensures buildings or land have physical support from adjacent properties, preventing excavation or construction that might cause damage or instability. |
Legal vs. equitable easements
Easements can be classified as either:
Legal easements
Equitable easements
Legal easements are formalised through a deed and are registered with the Land Registry. They offer stronger protection and are easier to enforce in court.
Equitable easements arise from informal agreements or implied situations and may not be registered. While they are recognised by law, enforcing equitable easements can be more challenging.
Common easements in residential and commercial properties
Easements are prevalent in both residential and commercial properties.
Common easements in residential properties include:
Rights of way to access driveways, shared paths, or access roads;
Rights to light for windows and gardens;
Utility easements for water, sewage, and power lines.
Common easements in commercial properties include:
Easements for parking access, delivery routes, and utility services;
Rights to light for office spaces and retail environments;
Support easements for shared walls and infrastructure.
Key characteristics of easements
Easements can significantly impact property use, value, and enjoyment. Whether you are buying, selling, or developing land, understanding the characteristics of easements helps you make informed decisions and avoid disagreements.
Dominant and servient tenements
An easement involves two pieces of land:
Dominant Tenement - This is the property that benefits from the easement;
Servient Tenement - This is the property that is burdened by the easement.
For example, if an easement allows access through a neighbouring property, the dominant tenement is the land that gains this access and the servient tenement is the land through which access is granted.
Accommodation of the dominant land
For an easement to be valid, it must accommodate or benefit the dominant tenement. This means the easement should provide a practical advantage to the dominant land.
For example, an access easement allows the dominant tenement to reach a public road.
The benefit must be directly related to the use and enjoyment of the dominant land, rather than a personal benefit to the landowner.
Separate ownership of dominant and servient lands
For an easement to exist, the dominant and servient tenements must be owned by different parties.
If the same person owns both properties, the easement typically merges into the ownership and ceases to exist.
Capability of forming the subject matter of a grant
An easement must be capable of being granted by a deed. This means:
The rights granted must be clearly defined and understandable;
The easement should confer a recognisable legal benefit on the dominant tenement, rather than just providing a personal convenience.
The easement must not violate any laws or public policies.
These characteristics make sure that an easement is legally enforceable and provide a tangible benefit to the dominant tenement.
How are easements created?
There are various ways easements can be created, each with its own legal implications.
Express Grant by Deed
The most formal way of creating an easement is through an express grant.
This involves drafting a deed that clearly specifies the easement, its purpose, and the properties involved. Both the dominant and servient tenement owners must agree to the terms, and the deed must be signed, witnessed, and registered.
Implied Easements
These easements aren't written down but are assumed to exist based on the circumstances.
They often arise when land is sold, and the buyer requires certain rights to use the seller's remaining land.
Implied easements can occur through necessity or common intention.
Easements by Necessity
These are a type of implied easement that comes about when a property is landlocked and requires access through another property to reach a public road. Without this easement, the dominant tenement would be unusable.
Easements by Common Intention
These occur when both parties intend for an easement to be created based on the circumstances surrounding the property's use.
For example, if a piece of land is sold with the understanding that it will be used in a specific way that requires an easement, such as access to a shared driveway.
Rule in Wheeldon v Burrows
This rule allows for the creation of easements when land is sold, provided certain conditions are met.
If the seller had used a part of the property in a way that benefits another part, and this use is continuous and apparent, an easement may be implied when the land is divided.
Prescriptive Easements
If someone has used another person's land openly, continuously, and without permission for at least 20 years, they may gain a legal right to continue this use.
There are two main doctrines under prescriptive easements:
Under the Prescription Act 1832: This act formalises acquiring easements through long-term use. It sets out the conditions under which an easement can be claimed, requiring at least 20 years of continuous use.
Doctrine of Lost Modern Grant: This legal fiction assumes that if someone has used the land in a certain way for a long period, a deed granting the easement must have existed at some point but has since been lost. It helps establish prescriptive easements when no formal documentation is available.