Oonagh McKinney is partner and head of the commercial property team at Frettens.
In this article, she looks at what an easement is and how they are created. She also looks at enforceability and what you can do when an easement is breached, before examining some cases that have tested the law surrounding Easements.
What is an easement?
An easement is a right benefitting a piece of land, which is known as the dominant land, that is adjoined over another piece of land owned by someone else, known as the servient land.
For an easement to exist you must have this separate dominant and servient land and they must be in separate ownership.The right must be capable of being granted by deed and must be sufficiently definite. Main examples are rights of way, rights to run services, rights of overhang.
Jennifer Smith has written an introduction to buying a property with Rights of Way here.
How is an easement created?
There are various ways of creating easements:
1. Express grant by deed
It is important to remember that any express grant of an easement over registered servient land must be registered otherwise it will not operate at law.
2. By statute
Generally where an easement is acquired by statute it does not need to be completed by registration to become a legal easement.
Various statutes also give special powers to utility companies for example gas, water and electricity, to enter onto private land and install pipes and cables for public supply.
3. Implied Grant
An easement can be implied where the grantor, that is the owner of the servient land, disposes of part of its land.
4. Prescription
Rights can be acquired by having exercised a right for a long period of time without interference. The period of time for somebody claiming to have acquired rights by prescription is now at least 20 years.
What rights are eligible for easements?
An Easement must benefit the dominant land and the dominant land must be identifiable at the time of the grant.
It is only that dominant land that can benefit from the right granted.The right cannot benefit other subsequently acquired land without an additional grant.
Can a property owner block an easement?
Interference with an easement may give rise to an action for private nuisance. The party making the claim must show they are entitled to the benefit of the Easement, the nature extent and scope of the Easement and that the interference is “substantial”.
How do you protect an easement?
The following remedies exist for interference with an Easement:-
1. You can apply to get a Declarations from the court
The court will declare the existence and extent of the easement so as to provide certainty for future use. This will be binding on the parties and their successors in title.
2. Injunction
The court has a discretion to award an injunction.
Only binding on the parties to proceedings and not their successors in title. May be awarded if damages would not adequately compensate the claimant.
3. The court could award Damages
With all these three remedies could be awarded singularly or in combination with one another.
4. Abatement
Self help remedy which should be exercised cautiously.
This involves a right to enter the servient land in certain circumstances to put right the interference. For example, removing an obstruction that is blocking a right of way. There are limitations in this approach including not causing unnecessary damage and exercising abatement promptly.
How long does an Easement last?
Easements are permanent, however they can be extinguished where:
- There is unity of ownership of the dominant and servient tenements (unity of seisin rule)
- Express release by deed by the dominant owner
- Implied release e.g. abandonment of the easement by non-use for more than 20 years; or Operation of law
Is it bad to have an Easement on your property?
The title to a property may contain an existing right but is it adequate for the intended use. You may want to consider an indemnity policy to cover in the event of the owner wanting to limit or prevent the exercise of the right. You may need to consider a variation of the easement.
Recent Easement cases
Harris v Fowler
One of the leading cases relating to easements is the case of Harris v Fowler (1904).This is an area that creates problems for property lawyers.
The basic rule in Harris v Fowler is that a right granted for the benefit of a dominant piece of land (plot A) cannot be used for the benefit of other land (plot B).However, a doctrine of ancillary use has emerged through a whole stream of cases, some of which are quite difficult to reconcile with each other.What this means is that in certain circumstances an easement may be used in connection with land that is not the dominant land.
Easements: Ancillary Use
Ancillary use has been considered in the following cases:
Easements and dominant land
In Alvis v Harrison (1991) it was made clear that it made no difference whether the dominant land and the additional land using the easement are owned by the same person or by different persons. The easement is granted for the benefit of the dominant land and must accommodate that particular land.
Easements and right of way for car parking
In National Trust v White (1987) the High Court held that use of a right of way to access a car park which was outside the dominant land by members of the public visiting the dominant land was ancillary to the enjoyment of the dominant land and was therefore within the terms of the grant.
Easements for non-dominant land
In Jobson v Record (1998) the Court of Appeal held that felling timber on the additional land and using the right of way to move the timber to the dominant land was not allowed. The right of way was being used for the benefit of the non-dominant land.
Can easements be used to access secondary land?
In Peacock v Custins (2001) the Court of Appeal held that a right of way expressly granted in favour of a field could not also be used to reach a neighbouring field even though both fields were being farmed as one unit.
Car Parking Easements
In Das v Linden Mews Ltd (2002) two owners had a right of way over a roadway to their respective houses. They both started using a separate garden area that lay between the houses for parking their cars. The Appeal Court held that access to the garden was not necessary to access the dominant land. Access to the garden for parking was a separate use and was not sufficiently connected to the dominant land. This decision is particularly difficult to reconcile with the National Trust v White decision above where access was deemed ancillary.
Easements building an extension
In Massey v Boulden (2002) the dominant owners had been using a track to access their house for 21 years. They built an extension to the house and continued to use the track for a further 19 years and 10 months. The owners of the track argued that even if the house owners had a prescriptive right of way for the house as originally built, they did not have one for the extension and that the owners were a year and 2 months short of acquiring a separate right for the extension.
The Appeal Court held that if the use of the additional land was ancillary to the use of the dominant land then the right could be exercised in respect of both. On the facts the use of the extension was ancillary to the use of the house as originally built. The Court did not expand on what it meant by ancillary and again the case is hard to reconcile with Das v Linden Mews where they deemed access to the garden was a separate use.
Easements and access to a garage
More recent cases include Gore v Naheed and Another (2017). This is where the Court of Appeal had to decide if a right of way in favour of a property could also be used to access an adjoining garage that was not part of the dominant land. The Court looked at the leading cases that I refer to above and their view was that the differing results in those cases resulted from applying the test for whether ancillary use is permitted for the particular facts. In each case they needed to consider the terms of the grant to see if the claimed ancillary use falls within it and also if the ancillary use accommodates the dominant land, that being one of the characteristics of an easement.
Who is responsible for maintaining an easement?
A very recent case is Parker and Another v Roberts (2019) where the Court of Appeal held that the grant of a right of way in a Conveyance only benefitted the land transferred. It did not benefit an existing plot owned by the purchaser even though the Conveyance imposed an obligation on the plot owner and successors to pay towards the cost of the road. So no new law but interesting in that an obligation to contribute did not mean that there was an implied right of way.
Legal advice on Easements
As you can see, Easements are a rich source of legal proceedings. The ones mentioned are the tip of the iceberg and as I mentioned can be contradictory and difficult to predict.
Careful wording and the intention of the parties need to be looked at closely by experienced legal professionals.
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At Frettens, we have one of the largest and most experienced Commercial Property teams in the area, and we are recommended in the Legal 500, an independent Legal Services directory.
Our Commercial Property teams are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone to all new clients.
If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 or fill in the form on this page and one of the team will be happy to speak with you.