What is an easement?

An easement is a right to use land in a certain way, by a person who is not the owner of the land. In order for an easement to exist, there must be a 'dominant' and a 'servient' piece of land.

The dominant piece of land has the right over the servient piece of land. The usual way for an easement to be created is when the owner of a piece of land sells a part, but not all, of the land they own. The seller may want to retain some rights over the land they have sold, such as:

  • A right of access
  • A right to light
  • A right of drainage

If they do, they will write it into the contract of sale and into the deed of transfer. This is known as the express grant of an easement.

Express easements

When a landowner sells a part of the land they own and retains a part, this sale may mean that the landowner no longer has access from the road to the piece of land they have retained.

In order to prevent this happening, the landowner will write into the draft contract and the purchase deed that they retain a right of way over the land. When either landowner sells their piece of land, the easement will remain effective over the land.

If the land is registered property, easements must be registered with the land registry on both titles. If the land is unregistered, it is not necessary to register the easement as it will be contained in the deeds to the property.

Easements should be created by deed - this means the document granting the right should be:

  • Signed
  • Witnessed
  • Delivered

Express grant of an easement is not the only way to grant or reserve an easement. Easements can also be created by:

  • Implication
  • Statute
  • Continued use of a right for many years (prescription)

Implied easements

If one landowner is selling part of their land and retaining another part, it can sometimes be the case that even though the seller and the buyer do not expressly agree that one of them has a right over the other piece of land; it can be implied by law.

The right to exclude the implied grant rules must be agreed as a term in the contract of sale. The rules over implied reservation are slightly different - the rules usually require that the person selling the land expressly reserves the right to use the land in a certain way.

Easements by prescription

An easement arising by prescription usually arises where the claimant can show long and continuous use of the right. Easements will be recognised if they have existed since ‘time immemorial’ but the law has a very long memory, under the common law, its limit is the year 1189.

In fact, today you would not have to prove the easement existed in the twelfth century. Twenty years would probably suffice providing there was sufficient proof.

Property law is complicated and it is always recommended that it is handled by specialists. If you have any concerns about how the law affects your property, it is vital to seek legal advice to ensure you are fulfilling your legal obligations.

For further guidance on third party rights to your property, see our information page on property rights.

Do you believe there is an easement over your property, or do you need to run searches to check if there is an easement over a property you wish to purchase? Contact Law can put you in touch with a specialist property solicitor who can check all third party rights to your property for you. Please call us on 0800 1777 162 or complete the web-form above.

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