Easement : The basics explained

This article sets out to explain what an “easement” is and how they can affect your land. It is an area of the law our Property Litigation Team regularly advise on in particular, rights that benefit land most commonly to do with rights of way. For more information about the points raised in this article email: propertylitigation@parissmith.co.uk.

What is an easement?

An easement is a right benefiting a piece of land (known as the dominant tenement) that is enjoyed over land owned by a third party, often the neighbouring land (known as the servient tenement).

Take our example shown in the photograph of the desert island (it helps to picture yourself there!). The island (dominant tenement) has a right of way over the pontoon to the servient land.

Four essential characteristics of an easement

There are 4 essential characteristics of an easement. These are:

1. Linked two pieces of land – Dominant and Servient Lands : You must be able to identify that there are two separate pieces of land – the dominant land which enjoys the benefit of the easement and the servient land over which the easement is exercised. The easement must be used in connection with a piece of land, it cannot be used independently.
2. Easement must accommodate the dominant tenement : The easement must be linked to the dominant land and not a mere personal advantage to the owner of the land. The two pieces of land do not have to adjoin each other, but there must be a degree of proximity.
3. The owners of the dominant and servient tenements must be different persons : An easement cannot exist where the dominant and servient land owners are in common ownership and possession i.e you cannot have an easement over your own land.
4. The right must be capable of forming the subject matter of a grant : You must clearly be able to establish what the right is so that it can be granted in one of the forms we shall go on to discuss.

How is an easement created?

Here are some examples of how easements are created:

1. Express Grant by deed, statutory or by will; or
2. Implied Grant

Easements may be implied where the servient owner disposes of part of its land. The three main ways are:

1. By reason of necessity – eg, otherwise the property would be landlocked if no easement was implied.
2. Common Intention of the parties – similar to above, rights that need to be granted in order to give effect to the manner in which the land sold or retained was intended to be used.

Under the rule in Wheeldon v Burrows – this case law applies on disposition of land that was previously in common ownership. The rule in this case covers the above – necessary for the reasonable enjoyment of the part of land that has been disposed of, in continuous use at the time of sale and that the right is necessary for the reasonable enjoyment of the dominant land.

Under s.62 of the LPA 1925 – this legislation deals with the conveyances of land and implies easements in certain circumstances.

3. Prescription – Using the land continuously as of right without interruption for 20 or 40 years by and against the freehold owner. The claimant must be the freeholder and if the burdened land is leasehold the use must have started before the lease began.

These methods often overlap and claimed in the alternative.

Legal v equitable easements

Easements are classified as either legal or equitable easements. To be a legal easement the right has to be granted to a freehold estate or for a term of years absolute. They may be expressly created by deed, statute (often for utility companies) or by will (very rare). They are usually now created on TR1 or TP1 forms. Prescriptive easements where rights have been used for over 40 years also take effect as legal easements but again this is rare. If servient land is registered then the legal easement must be registered otherwise it will be an equitable interest only.

The main difference between a legal and equitable easement is their ability to bind a third party. A legal easement will bind all purchasers, regardless of whether they knew of it, whereas an equitable easement will only bind a purchaser who had knowledge, which can be challenged.

Excessive use of easement

Increase in the use of an easement does not automatically mean the servient landowner can object. The first step is to check whether the right of way has been created by express grant or reservation or implied grant or prescription.

1. Express grant or reservation

Look at the actual words of grant and when this is vague, consider the surrounding circumstances at the date of grant. If there is no limitation on use in the wording then the use is not limited to that enjoyed at the time of the grant. For example, if the right was granted for “all times and for all purposes” it may continue to be used even if use of dominant land undergoes substantial change or intensification. An increase in use, however, rather than a different use might be looked on as excessive if it interferes with another lawful user’s enjoyment of it. (McGill v Stewart & Anor).

2. Implied grant or prescription

When dealing with implied grants or prescriptive easements focus should be on looking at the use of the right at the time it was first created. The leading case in this area is McAdams Homes Limited v Robinson [2004]EWCA Civ 214. The Court of Appeal established in this case that the right of the dominant owner to enjoy an easement will end (or be suspended) if the servient owner can establish 1) the development of the dominant land represents a radical change in its character and 2) which results in a substantial increase or burden on the servient land.

In all cases it is important to look at the physical dimensions of the easement. If at the time the easement was granted the path was not wide enough to fit a car along it, then the easement would be limited to pedestrian use only. Taking you back to picturing yourself on our desert island – the right of way over the pontoon will clearly be on foot only.

The rule in Harris v Flower and Sons

This rule is particularly relevant if you are considering building an extension on a separate parcel of land or have plans to develop land that you want to extend an easement that benefits another parcel of land too.

The General Rule – A right of way granted for access to the dominant land cannot also be used in substance for access to land adjoining or neighbouring the dominant land.

An exception to this rule has emerged through case law – a right of way can be used for purposes which are ancillary and incidental to the right granted for example:

• Accessing a car park which was outside the dominant land by members of the public wanting to visit a National Trust property was held to be ancillary to the enjoyment of the dominant land (National Trust v White 1987).
• An extension built on a separate parcel of land was held to be ancillary use to the dominant land and so the right of way was extended to both (masey v boulden 2002).

Remedies for interference with an easement

1. Declaration from court:

• • Used to confirm the existence and extent of the easement
  • A Declaration is binding on all parties & the successors in title
  • If you need to enforce the Declaration then the injured person would need to seek an injunction from court
  • Record the Declaration with the deeds and/or Land Registry on the relevant titles

2. Injunction from court:

• • Equitable remedy awarded at the discretion of court and needs to be brought in a timely manner
  • Only binding on parties to the proceedings not successors in title
  • Breaching an injunction is contempt of court
  • Types: Mandatory, prohibitory & quia timet

3. Damages:

• • In relation to an easement the damages awarded are calculated on the tortious measure of damages
  • In relation to trespass or nuisance the damages are assessed to compensate the claimant for loss actually suffered
  • Damages are limited in recoverability so need to consider; whether too remote, not sufficiently strong causal connection, whether claimant has failed to mitigate it’s loss or whether the loss is as a result of the party’s own fault
  • In relation to whether an easement has been interfered with damages can arise from direct damage, inability to use land, consequential loss, stress/anxiety from the defendant’s unreasonable behaviour, or exemplary damages if the defendant stands to make a profit from its actions

4. Abatement:

• • Self-help remedy to be used when there is a right to enter the servient land and a remedy exists that can put right the interference
  • Only to be used where a cause of action exists
  • Beware of the limitations of its use
  • If used and the nuisance recommences other remedies can be sought eg. damages/declaration/injunction

Frequently Asked Questions

Q: What is an easement?

A: An easement is a right benefiting a piece of land (known as the dominant tenement) that is enjoyed over land owned by a third party, often the neighbouring land (known as the servient tenement).

Q: Can an easement be granted by way of a lease?

A: You can have a grant of an easement for a term of years that is sometimes called a “lease of easements” which can be confusing, but it is not a lease of land, rather than an easement for a term of years certain. A lease would give a right to exclusive occupation which is not the nature of a true easement.

Q: Can a grant of an easement be protected under the 1954 Act?

A: It might be, but if so it’s very rare. There has to be premises that are capable of occupation which rules out a lot of easements. Right of ways are rarely protected under the 1954 Act because there can be no “premises” capable of occupation. There are a few exceptions, for example where a right of way is part of a lease which the Act applies. Parking spaces used intermittently for parts of the day can be occupied premises for the purposes of the 1954 Act. Pointon York Group PLC v Poulton [2006]

This area of law has not been tested out extensively in case law but gives you some examples.

Q: Can an easement be transferred?

A: An easement cannot be sold separately. It passes with the land when it is transferrred.

Q: Can easement rights be taken away?

A: It is possible, although rare, to lose a right to an easement. An easement may be lost by one of the following ways:

1. Abandonment – where it has not been used for a significant period of time and it can also be shown that the owner of the dominant land had a fixed intention not to use the easement in the future.
2. Alteration of the dominant land – where the dominant land has been developed and the easement was only ever granted for a specific purpose.
3. Unity of ownership – where the dominant and servient land is owned by the same party.
4. Express deed of release agreed between the parties.

Q: Who maintains a right of way easement?

A: If the right is created by deed then it should expressly state who is responsible for repair and or contribute towards the costs of repair. In the absence of any written terms, neither the dominant or the servient land owner have to maintain a right of way. The user of the easement does have the right to go on to the servient land and undertake necessary maintenance but not to make improvements.

One of the services we offer our clients is for our specialists to provide internal training on legal topics of their choice. The Property Litigation Team gave a talk to one of our biggest commercial clients on the subject of easements with a particular focus on excessive use. If you would like to discuss the possibility of some training please contact one of the lawyers in the Property Litigation Team who will be able to help you.