Easements come in two main categories in England and Wales.
The first is an easement that confers a right of one landowner to use or access the land or property of another.
The second is an easement that restricts the landowner from specific activities on their own land.
Legal Terms Used
The law about easements can be very complex. It is made even more confusing because of the legal jargon used in this area of law. We will explain some of the vocabulary in this article and give a broad view of the main points involved, bearing in mind that there can be exceptions to the rules.
Easement
Simply put, an easement is a type of legal right, specifically relating to land or property belonging to someone else. Substituting the word “right” when you read “easement” may often help to clarify meaning. Easements are usually used between landowners of properties adjacent or close to each other.
The easement relates to the plots of land, so when either or both plots are sold, the easement will remain in place in most cases.
Dominant and Servient Tenement
If property A has an easement to use land belonging to property B, then property A is the dominant tenement and property B is the servient tenement.
For example, Mr Smith at 38 Hill Street needs to run water pipes between the main supply and his property. The pipes need to cross part of the property next door, 40 Hill Street, which belongs to Mr Jones. Mr Smith seeks an easement so that 38 Hill Street can install pipes and access them periodically for maintenance, as necessary. 38 Hill Street is the dominant tenement in this case and 40 Hill Street is the servient tenement.
If Mr Smith, Mr Jones or both sell their property, the easement remains in place.
Right to Use Another’s Property
The first type of easement we will discuss is the right to enter or use land or property that belongs to someone else. An example is a private right of way, allowing a specific person or people the right to proceed on land that belongs to another person. Other examples include the right to install and maintain water, drainage or other utility channels that cross another person’s land.
Easements Prohibiting the Landowner
Easements can go further, and be used to prohibit the owner from specific activities on their own land. For example, constructing a tall building if this would block light to adjacent properties owned by others. This is the “Rights to Light” referred to in the Law Commission’s booklet of the same name.
Interestingly, the Law Commission explains that, “Generally, people and buildings do not have a right to light. Instead, the law has to balance the need for light to existing buildings, and the need for new buildings, through the planning system.” This will be no less relevant today, while the UK has a housing shortage.
How Can I Obtain an Easement?
The quote given earlier in this article, from the Law Commission, illustrates that there is no simple, yes/no rule as to when easements may be obtained. It is often dependent upon arguing a convincing case for or against, as appropriate.
The methods to obtain an easement below sometimes differ only by subtle detail.
By Necessity
If a plot of land is completely surrounded, or landlocked, it may be argued that it is strictly necessary to grant easements to allow access to travel in and out of the plot and to install and service utility channels, for example.
By Grant
The owner of the servient tenement may grant the dominant tenement an easement. This must be in writing and is usually considered to be a permanent arrangement, unless specifically stated in the easement to the contrary.
By Implication
When plots of land have changed ownership and/or been split up, without easements explicitly written into the documents that transfer ownership, it can be possible to argue that the vendor intended the land to come with an easement.
By Prescription
If the land has been used for a long period in a certain way by the landowner seeking an easement, it could be argued that the easement is already in place by prescription. This is similar to how a public right of way may be granted through proof of long-term use of the land for public access.
Contact
For further information on all aspects of property, including: easements; leaseholds; conveyancing, etc, contact our property team leader, Scott Morris at Ardens Solicitors on 020 7100 7098 or email: sm@ardenslaw.com.
Our solicitors are fluent in English, Polish, Urdu, Punjabi, Hindi and Gujarati.
