Easements to excess? - Paris Smith Skip to content

12th December 2013

Easements to excess?


12th December 2013

Easements to excess?

Easements, whether rights of way, light or any number of other rights are in essence a right of one landowner over the land of another.  These rights are invariably construed in a restrictive way by courts since they represent a limitation, impediment or encumbrance upon the land of the servient party (over whose land the easement is exercised).

The restrictions on the extent of easements is particularly evident where rights are acquired through use (prescription). Where a party carries out a particular act for a sufficient length of time without doing so in secret, permission or force they will after a period of time (usually 20 years) acquire a legal right for the benefit of the property which benefits from those rights.  At its simplest, in the case of a right of way across the land of a third party, the application of the doctrine of prescription may result in a landowner acquiring a lawful right to pass to and from his property.

If however the use to which the land with the benefit of the covenants is altered substantially, the right is unlikely to be capable of being exercised for the altered use.  Two questions need to be considered in this situation:

  • Whether the change of use of the dominant land represents a radical change; and
  • Whether that change will result in a substantial increase or alteration in the burden on the servient (burdened) land.

In many cases this will result in prescriptive easements ceasing to be of any practical benefit where redevelopment is proposed.

As distinct from easements acquired by prescription, those granted expressly, in the absence of any words of limitation, are generally viewed as being adequate to accommodate any changes in use of the dominant land.

As is so often the case in the law, this is subject to a qualification that if the exercise of the right following any change of use in the dominant tenement is such as to interfere with the rights of any other party or would be such as to cause a legal nuisance, the exercise would be outside the terms of the legal grant.  This was the position in Jelbert v Davis.  A piece of land had the benefit of a right of way granted at all times and for purposes (the land with the benefit of the covenant originally being used for agricultural purposes).  This right was deemed to be inadequate to enable the land to be used as a caravan site.

The message is clear.  In any situation where an easement (whether express or implied) is relied upon in connection with the redevelopment of the property, careful thought needs to be given as to whether the rights (and the physical subject matter over which those rights will be exercised) will be adequate to service the redevelopment proposed.

If you wish to discuss any of the issues raised in this blog please contact David Eminton.

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