Easements play a pivotal role in property use and development plans, making it crucial for property owners, occupants, and developers to have a comprehensive understanding of their effect. In this article, we will explore the fundamentals of easements, how they arise and their legal implications.
What are easements?
Easements are rights granted by one landowner to another landlord over a building or piece of land for a particular purpose. Common easements include rights of way over privately owned land or rights to use services that run through another landowner’s land. Less frequently, an easement may impose restrictions on what a landowner may do on their land, referred to as a ‘negative easement’. For example, the landowner bound by the negative easement may be prevented from interfering with the benefiting landowner’s right to light.
A positive easement is one which allows the benefitting land to do something on the other landlord’s land or use a structure on it, for example, the right to use water pipes or electricity wire through the land, the right to pass over a path or road and the right to discharge water into a watercourse.
A negative easement is a right to receive something from the somebody’s land without obstructions or interference from them, for example, the right to light and air for a building and the right of support from a building.
Essential Characteristics of Easements
For a right to qualify as an easement, it must possess the following four essential characteristics:
1. Involvement of a dominant parcel of land (land enjoying the benefit of the easement) and a servient parcel of land (the land over which the right is exercised);
2. The right must accommodate (benefit) the dominant land;
3. The dominant and servient land must be owned by different people;
4. The right must be capable of forming the subject matter of a grant (for example, an easement cannot give dominant landowners exclusive and unrestricted use of land).
Creation of Easements
Easements are primarily created by one of the following three ways:
1. Express Grant by Deed - Easements are often created by the parties entering into a deed of easement, transfer deed of lease whereby the parties expressly grant rights to one another.
2. Implied Grant - Easements may be implied in a transfer or lease where the owner of the servient land sells or disposes part of their land.
3. Prescription - Easements may be claimed through exercising a right for a long period of time (typically at least 20 years) without interference.
Legal Implications of Easements
Easements carry significant legal implications for property owners, occupiers and developers. Once your solicitor has advised you on the easements effecting the property/land in question, you should consider the following:
• Will my intended use of the property be affected by the easements? Can I proceed with my planned development proposals? Will future development of the property be restricted or limited in any way? Will the easements hinder future development plans?
• Will the easements impact the current and future valuation of the property?
• Are the existing rights benefiting the property sufficient for my purposes or do I need to consider incorporating easements by deed?
• Do the exercise of the easements require me to provide a financial contribution?
Conclusion
Easements play a vital role in property transaction dealings. If the concept of easements is grasped comprehensively, they can be useful in planning the use of land. Whether granting or acquiring easements, seeking legal advice early will ensure that you understand the rights affecting or benefiting the property and can benefit from maximum utilisation of the land.
Further Information
For further information regarding any aspect of easements, please do not hesitate to contact Navleen Gulati on DDI: 01489 864 167 and E: Navleen.gulati@lawcomm.co.uk or Bill Dhariwal on DDI: 01489 864 117 or E: bill.dhariwal@lawcomm.co.uk
The contents of this article does not constitute legal advice.
