What is an easement?
An easement is a right that benefits the owner of a piece of land (referred to as the ‘dominant land’ or ‘benefited land’), in relation to land owned by another person (referred to as the ‘servient land’ or ‘burdened land’). In other words, an easement is a right that one landowner has over another’s land.
Easements are normally positive. This means that the owner of the dominant land has the right to use the servient land in some way. This is normally a right to cross or otherwise use someone else's land for a specified purpose. For example, to:
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lay electricity or telephone cables
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maintain water, drainage or gas supplies
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walk or drive across the land to access other land
However, easements can also be negative. Negative easements prevent something from being done to the servient land and give the owner of the dominant land the right to gain something from the servient land. In other words, negative easements can prohibit the owner of the servient land from using their land in certain ways that could interfere with the rights of neighbours. For example, they could prohibit the servient land’s owner from building tall structures that would reduce light in adjoining properties.
How is an easement created?
Easements can be granted in a variety of ways. This includes by:
Express grant
This type of easement is generally created by deed when someone sells part of their land but wants to retain certain rights over their previously owned land. These intended rights must be expressly stated.
If an easement over registered land is granted by express grant, it must be registered with the Land Registry.
Implied grant
Similar to an express grant, this normally arises when a landowner sells part of their land. However, implied grants do not need to be specified in any deed; instead, these are implied by law. A good example is where the land sold provides the only means of accessing the retained land, so the seller obtains an easement letting them access their retained land by means of implied grant. Implied grants are also sometimes known as ‘easements of necessity’.
Easements can be created by implied grant if:
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the easement is necessary (eg because the dominant land would be landlocked if an implied easement didn’t exist)
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the easement is the common intention of the parties. This is similar to necessity, in that the easement is needed to give effect to the manner the dominant land is intended to be used
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section 62 of the Law of Property Act (LPA) 1925 applies. This section applies to the sale of land and sets out that the benefit of an easement passes automatically with the transfer of land, or
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the dominant and servient land were previously owned by the same owner (ie the common owner), used for the same purposes (eg farming), and then sold to different parties. In these circumstances, each buyer will have the same rights (ie implied easements) against the other as if the land was still owned by the common owner. These rules, set out in the legal case Wheeldon v Burrows, only apply if the rights:
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were continuous and apparent (ie they must be obvious or visible)
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are necessary for the reasonable enjoyment of the property for the purpose for which the land was transferred to the new owner, and
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were and at the time of the transfer are used by the common owner for the benefit of the land transferred
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Implied easements under Wheeldon v Burrows and section 62 of the LPA are often expressly excluded by the parties when land is sold.
Prescription
Easements can be created by prescription if a non-owner has used a piece of land openly and continuously without permission, in a certain way, for at least 20 years. In this case, they will be granted an easement by prescription, which allows them to continue using the land in this way.
Easements by prescription are also known as ‘presumed’ grants of easements.
How can an easement stop existing?
Easements continue to run until either:
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the piece of owned land and the adjoining land (eg in the case of an express or implied grant) come under the same ownership
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a certain expressly agreed expiration date for the easement has been reached
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a new deed revokes the easement, or
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the easement has not been used for at least 20 years
What is a right of way?
A right of way is one of the most common types of easements, which often provides rights of access to owners of adjoining lands. But rights of way can also be afforded to the general public (known as the ‘right to roam’) if:
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the land is designated as 'open access' (eg mountains, moors, heaths and downs)
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the landowner has given permission for access (known as 'permissive access'), or
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there is a local tradition of access
Furthermore, public rights of way (or PROW) exist across many types of privately owned land. These are typically in the form of footpaths, bridleways and byways. Landowners must ensure they do not obstruct or interfere with these public rights of way. For more information, see the government’s guidance on PROW.
How can a right of way be granted?
Rights of way are created in the same way as easements. In terms of permissive access, the landowner can either reach a formal agreement with the local council or may decide to publicise its availability in a less formal manner (eg by displaying signs).
Public rights of way are often historic, but sometimes are created in a similar way to prescriptive easements (ie if the public has used a path uninterrupted for at least 20 years).
How can a right of way be closed?
Rights of way on private land can be closed in the same way as easements can stop existing.
In the case of public rights of way, the local highway authority may be able to close or divert a route.
How are disputes over easements and rights of way resolved?
If you find yourself in a dispute over an easement or right of way, the best first step is often to try and negotiate directly and amicably with your neighbour.
In the first instance, negotiation with neighbours can be the best way to resolve any disputes concerning easements.
For any issues that involve a public right of way, such as a footpath or bridleway, you should contact your local highway authority, as they are responsible for managing these routes.
However, property law in this area can be complex. If you cannot reach an agreement or are unsure of your legal position, it is important to seek legal advice to understand your rights and find a resolution.
As easements and rights of way are a complex area of law, if you have an issue, you should Ask a lawyer for information on your particular situation.
