Understanding Easements: What you don’t know can hurt you

This article first appeared in Prime Resi.

If you are buying, selling or developing a property in England or Wales, it is critical that you understand easements and how they could affect a property’s intended use.

Easement is a medieval word that derives from the 14th century Old French “aisement”, meaning comfort, convenience, use or enjoyment – no doubt wishful thinking during those dark days of plague and peasant uprisings.  The term’s more modern meaning, as a legal right over something that is not yours, emerged not long after, and is some way from its easy going etymological origin!

Why can easements be problematic? To start, there is their dual personality.  One property, the “dominant” land, enjoys the benefit of an easement while the “servient” one gets the burden.  The benefit could be a right to cross your neighbour’s garden to reach your car or a right to light which prevents your neighbours from extending their loft. Whether you benefit or bear the burden depends on which side of the boundary you are, or will be, on.

Another difficulty lies in the myriad and occasionally unpredictable ways in which easements arise. Some are created intentionally or expressly, to solve a particular problem.  If a property fronts a road, for example, and the rear is being sold, the seller will likely grant the buyer a right of way as part of the deal, so that the buyer and future owners can access the road.  Conversely, if the front is sold, the seller would want to reserve that right of way for itself and its future owners.

Implied easements can arise automatically by virtue of common law or statute when only part of the land is sold off, for example to assist a buyer who would otherwise be landlocked.  In such a scenario, an easement by implication could give the buyer a right of access over the seller’s retained land.

Sometimes easements can materialise, as if by magic, with the passage of time. Often by what is know as prescription, after at least 20 years’ use without permission or force; and sometimes via the fictional doctrine of lost modern grant whereby the court will, subject to certain conditions, assume an easement was granted, but later lost, even if there is no evidence that it ever actually was.

Where an easement is likely to interfere with your plans, you may be able to negotiate a release.  This is typically in exchange for payment to the dominant landowner and the price for freedom will depend on your relative bargaining power. Alive to this potential bargaining chip, some owners will retain a sliver of land, known as a ransom strip, when selling off a larger plot.  A well-placed ransom strip can prevent development of neighbouring land by denying access from the land to another parcel of land or the main road.

Easements may also be extinguished, naturally as it were, where the dominant and servient land come under common ownership, or where an easement was created for a particular purpose that ceases to exist. In some scenarios, though more unusually, they may cease because they were time limited, or because the facts show that they have been abandoned.

The principle of buyer beware means that a seller in England and Wales is not required to reveal property problems to a potential buyer. The onus is squarely on the buyer (usually by way of her solicitor) to elicit information about any easements or other issues through searches of the property (and surrounding area) and enquiries of the seller. A seller, however, should be equally inquisitive about their own property.  To be sitting on top of a lucrative easement and not know about it is an opportunity lost.

If you are buying, selling or developing land that may be subject to easements, be sure to get legal advice from someone with experience of your circumstances. Be clear about your intentions: the more information you can share about your situation and proposed plans, the better placed your adviser will be to provide practical, commercially sensible advice. An easement can be a blessing or a medieval curse. Don’t leave it up to chance.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.