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: firstname.lastname@example.org.
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.
There are 4 essential characteristics of an easement. These are:
Here are some examples of how easements are created:
Easements may be implied where the servient owner disposes of part of its land. The three main ways are:
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.
These methods often overlap and claimed in the alternative.
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.
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.
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).
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 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:
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 
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:
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 recently 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.