Easements are a key consideration for landowners and developers, as a failure to consider their implications properly may severely inhibit a development scheme.

Our blog identifies common easements, how they are created, and common forms of disputes arising from easements.

The first blog in our two-part property litigation series will discuss what an easement is, how they can benefit a piece of land, and how they are created.

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What is an easement?

An easement is a right which benefits a piece of land, otherwise known as the dominant land.

This right is enjoyed over another piece of land owned by someone else - this is known as the servient land.

An easement normally allows the dominant land owner to do something on servient land, such as travel or run services over it.

This is known as a positive easement.

Examples of positive easements are:

  1. Use of water pipes or drains.
  2. Use of gas pipes or electricity wires.
  3. Passing over a path, road or way.
  4. Discharge of water into a watercourse.

On the other hand, an easement can be negative when the dominant land owner has the right to limit what the servient owner may do on the land.

An example of a negative easement is where the servient owner is not permitted to construct buildings that would interfere with someone’s right to light.

Further examples of negative easements are:

  1. A right of air.
  2. A right of support from a building.
  3. A right to receive a flow of water for an artificial stream.

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How are easements created?

An easement can be created in many different ways, and we will discuss these methods below.

  • Express grant by deed – an express grant of a legal easement must be by deed and executed by the grantor. This is subject to Section 65 of the Law of Property Act 1925. Easements are most commonly granted in a transfer of a legal estate or upon the grant of a lease where the new owner will enjoy a right over land retained by the transferor or landlord. An express grant over registered servient land must be completed by registration at the Land Registry. It will not operate in law until the registration requirements have been met. However, if the servient land is unregistered, the grant of an easement is not registrable, so it is effective when made.  
  • Statute: An easement acquired by statute is not usually an express grant. Many statutes confer easements on third-party grantees. For example, an easement can be acquired under the rules of enfranchisement, which is governed under the Leasehold Reform Act 1967. Easements can also be acquired by the exercise of compulsory purchase orders.
  • Will – an easement can be created by a Will whereby the person who has died leaves a dominant and servient land to different people.

How are easements created

  • Implied grant – the grant of an easement may be implied, where the owner of the servient land disposes of part of its land. This type of easement can be created by:
    • A reason of necessity.
    • By common intention by the parties.
    • Under the rule in Wheeldon v Burrows.
    • Under Section 62 of the Law of Property Act 1925.
  • Prescription – in the absence of an express or an implied grant, an easement can be created by prescription. This means that the dominant land makes use of a right over the servient land for a long period of time without interference. There are three types of methods to acquire an easement by prescription, they are:
    • Common law.
    • Doctrine of lost modern grant.
    • Under the Prescription Act 1832.
  • Contract – a contract to grant a legal easement is a contract for the sale or other disposition of an interest within land, and the easement will become legal when the contract has been completed.
  • Proprietary estoppel – an equitable easement can be created by the doctrine of proprietary estoppel where:
    • The servient landowner allows the dominant landowner to believe that it has or will enjoy the benefit of the servient land;
    • The dominant landowner acts to its detriment in reliance of this belief and to the knowledge of the servient owner; and
    • The servient landowner then seeks to take an unconscionable advantage of the dominant landowner by denying the right or benefit that had been expected.

In our second blog, we will look at who is bound by an easement and how easements can be interfered with or used excessively.

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