Easements on my land or property: what do I need to know?

Thu 17th Dec 2020

Madeline Dykes, Solicitor in Coodes’ Commercial Property team, outlines what you need to know if you have easements on your land or property.

When buying property or land, it is important to know everything about your property rights before committing to the purchase. An easement is the legal right to exercise privileges over another person’s land. This means either the public or an individual can cross or use someone else’s land for a range of purposes. Easements are commonly in the form of rights of way, rights of access and rights of drainage or utilities.

When purchasing a property, whether it’s bare land, land for development or the renovation of a property which lacks modern utilities, care should be taken to ensure the land or property enjoys all the necessary legal easements before committing to purchase.

How are easements created?

Easements can be created through a number of ways but the most common is by deed. This tends to be in cases of parcels of land being sold where it is only possible to access one plot of land by passing through another.

They can also be created through long-term use – if the right has been used for at least 20 years – where a person has allowed another to exercise a right in the absence of an express deed and prejudice themselves financially in the process.

An easement can also be implied under Section 62 of the Law of Property Act. When an owner disposes of part of his or her land, all privileges enjoyed by that bit of land may be converted to legal easements, unless expressly excluded in the transfer document. It does not, however, work the other way around. Any privileges which the retained land enjoys over the part being sold must be expressly reserved at the time of the transfer in order to be converted to easements.

What if I also buy the adjoining land?

An easement cannot be assumed for land which is purchased adjacent to land already owned or with land which enjoys an express right which would also benefit that adjoining land. Therefore, if land A is owned and enjoys an express easement over third party land, purchasing land B directly adjoining it will not automatically transfer that right to land B, even though land A and B are in the same ownership.

How do I remove an easement on my property?

It can be difficult to remove an easement from land or property, especially without the consent of those benefiting from it. It can be complicated and depends on a range of factors as each situation is different.

Easements created by deed cannot generally be revoked other than by deed, irrespective of how long they may have not been used You may be able to remove an easement on your land if you demonstrate that the purpose no longer exists. This could be, for example, if those benefitting build a permanent obstruction across the right of way, or permanently remove the facility enjoying the right. It could also be possible to remove an easement if they implicitly agree to release the right, for example by permitting you to build a permanent structure across the right of way.

As a general rule, an easement by deed cannot be revoked simply on the grounds of abandonment by the person benefitting. In other implied cases, an easement can be revoked if positive action has been taken by the person benefiting to indicate abandonment. This could be, for example, if the outside toilet on neighbouring land exclusively enjoying drainage rights over your land is permanently dismantled.

In most instances, it should not be assumed that lack of use will be sufficient in getting an easement revoked.

In some cases, easements can expire simply through the passing of time. This would be relevant when the agreement granting the easement lasts for a specific period of time, or it was granted for a specific purpose, which is no longer being served.

The rules governing easements and their enforcement can therefore be complicated and subject to a great deal of case law, and legal advice should always be sought.

For more information or advice, please contact Madeline Dykes or another member of the Commercial Property team at Coodes Solicitors: 0800 328 3282 or madeline.dykes@coodes.co.uk

Thu 17th Dec 2020

Madeline Dykes

Solicitor

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