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The second property litigation blog in our two-part series will consider what happens when an easement is interfered with and what constitutes excessive use of an easement.
We also review some case law which demonstrates how the Courts may interpret easements.
A legal easement, created by deed or statute (most commonly created on a transfer form), will provide that the right will be granted to a freehold estate or for a term of years.
Prescriptive easements that have been used for more than 40 years also take effect as a legal easement, but in practice, this does not happen often.
If the servient land is registered at the Land Registry, the legal easement must also be registered; otherwise, it will be equitable only.
A legal easement will bind all purchasers, whereas an equitable easement will only bind a purchaser who has knowledge, and this can be challenged.
Interference with an easement gives rise to an action for a private nuisance. The party claiming the interference of an easement must be able to show:
Examples of interference include:
The remedies for interference with an easement include:
An easement must not exceed that which it was granted for or acquired.
Broadly, the use of an easement can be considered in three different but overlapping ways:
The three aspects are frequently looked at in the light of the character and identity of the dominant land.
Excessive use can be considered when a servient owner (who acknowledges that an easement exists) objects to the way in which it is now being used, probably as a result of changes to the dominant land over a period of time.
A servient owner cannot prevent a person from lawfully exercising an easement because another person is exercising a similar easement in an excessive or unlawful manner.
Examples of excessive use include:
Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch).
The claimant ran a restaurant that adjoined the defendant’s hotel.
The restaurant had no toilet facilities for its customers, and the lease contained an easement providing a right of way for its customers to use the hotel toilets.
In 2016, major refurbishment works began on the hotel, which meant that the right of way was closed off.
The claimant, therefore, applied for an injunction to keep it open as it could not run the restaurant without the toilets.
The judge granted interim relief prohibiting the works from taking place during the restaurant opening hours until the matter could be reviewed at a hearing.
The claimant’s application was refused.
This is because the length of the proposed works was temporary, and an alternative access was offered by the defendant to the claimant.
The defendant’s works were allowed to continue, and the claimant would be able to pursue a claim for damages against the defendant.
If you need professional legal advice concerning nature of easements, please contact Myerson Solicitor's Property Litigation team on: