My property has an easement - what do I need to know?

Since the beginning of time, we have looked to protect our land from intruders. So waking up one morning to find tyre marks going over your newly planted lavender bush may come as a bit of a shock!

If you’ve discovered an easement running through your land or property, you may be wondering who has access and who can pass over your land. Here, we look at what an easement is, examples of common easements, and your available options.

What is an easement?

An easement is a legal right granted over a building or a piece of land that permits a specified use to another property. This often involves the dominant land having the right to perform specific actions over the servient land.

Commonly, this includes:

• A private right of way: a right to pass and re-pass along a privately owned road or across privately owned land.
• Car parking: a right for a landowner (dominant) to park anywhere in a defined area on the servient land.
• Right of Support: in many areas of the country, buildings are physically joined together by a party wall to mutually support each other. As you can imagine, the sudden destruction of this supporting wall would wreak havoc.
• Rights of Light: an easement giving a property owner the right to enjoy the light passing over somebody else’s land and through defined apertures, typically windows, in their building.
• Utilities: this relates to the land under the property which the pipes are laid. Usually, there is a one-off payment to the landowner on installation, with permanent access granted to the utility company to service the pipes and cables at any reasonable time, often by serving a notice of entry.
• Water rights: these usually take the form of a right to draw water from a watercourse or a spring on a neighbour's land. Problems can arise if you increase the amount of water that you take or if the natural flow diminishes below a level that will support your needs.

A key point to note is that, unlike a licence that is granted for a specified term, an easement on a property is binding for all current and future landowners.

Types of easement

There are a few different types of easement, each with its own set of circumstances. They include:

• Express grant: this occurs when an individual sells part of their property but wants to keep some rights over the land they have sold. This may include a right of way or the ability to maintain utility infrastructure.
• Prescription: this happens when an individual has been openly using land in a certain way for over 20 years. If they can prove that this is the case, an easement for continued use may be granted.
• Implied grant: this often occurs when part of a property is sold. However, rather than being written into the deeds to the property, its existence is implied by law. For example, if the land that has been sold is the only means of accessing the land that has been retained, an easement of necessity exists.

What are the essential characteristics of an easement?

The case of Re: Ellenborough Park sets out the four essential characteristics of an easement. While we are sure you will find the 20-page judgment a must for your next ‘beach read’, we have summarised them as follows:

• There must be a dominant and servient tenement
• The easement must ‘accommodate’ (benefit) the dominant tenement
• The dominant and servient owners must be different people
• The right must be capable of forming the subject matter of a grant

How do I remove an easement on my property?

First, you must understand the effect of the easement on your property. Does it negatively impact your use or enjoyment of the property or your ability to sell it in the future? Oftentimes, this won’t be the case. An easement on your property should operate in the background of your day-to-day life and be of no hindrance.

If that is not the case, it is important to remember that easements are permanent. However, they can be extinguished where:

• There is unity of ownership of the dominant and servient tenements
• Express release by deed by the dominant owner
• Implied release e.g. abandonment of the easement by non-use for more than 20 years

For further information and trusted legal advice regarding matters of property easements and disputes, get in touch with the team at Carlsons Solicitors.