Easement - What are easement rights?

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02/07/2021

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An easement gives the dominant owner the right or rights to cross or otherwise use someone else's land. Two of the most common easement rights are a right to light and a right of way. The parameters fall under the following:

What is the physical extent? - this is in essence the size and width of a right of way through your land.
What is the purpose and manner of the use? - this could be for the use of a telephone mast on your land.
What are the limitations? - some rights of way may only be granted during day light hours.

How do you find if there is an easement right over your property?

You can find if there are any easements that grant any rights over your land by checking Section C Charges Register within your title deeds. During a purchase your solicitor reports to you regarding any easements over the land you are buying.

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What is an easement?

Technically, they are any rights that a third party has over your land. They can arise by:

Express grant - this is normally been expressly granted in a deed where a landowner offers the right to use part of their land. The physical extent, purpose and limitations of use should be set out within the deed of easement.
Implied grant - similar to an express grant and normally arises when a land owner sells a piece of their land where the land sold requires access through the retained land of the landowner.
Prescription - this is a more complex easement where someone who is not the landowner can prove they have used a piece of land without permission for a period of not less than 20 years. In these circumstances an easement can arise to allow the continued use of the land for the physical extent, purpose and limitations it has been used for over the previous 20 years.

To keep things simple, however, you can think of them as some right you have over some land adjoining yours, or conversely, some right, as stated, which another has over the land which you've bought or leased.

Example of an easement

A mobile phone company want to place a mobile phone mast on your land. They agree to pay you an annual fee for the use of the land and it is agreed that the phone mast will remain on your land for 10 years and you can agree whether to extend this period or not. The mobile phone company needs the right to use the land and also to have access to the piece of land they have paid to use. A deed of easement is drafted to confirm the physical extent of the mobile phone mast, the purpose of using the land and any limitations and that the deed is in place for 10 years for an annual fee of £X.

Easements can actually be positive or negative; either allowing a right over another’s property or restricting the performance of an otherwise lawful activity on a property. The most common types of positive easement are rights of way or to light, as mentioned, and these are the ones which are likely to be uncovered in your conveyancing solicitor's research on your title, and might even include the right to park your vehicle on a neighbour’s land or even to use their outdoor toilet. Negative easements could be restricting planting trees so as to block a neighbour’s countryside view.

In cases of a breach of an easement, similarly there may be serious consequences if a case goes to court and it finds against you.

Even the building of a fence across someone’s right of way could mean you have breached an easement and may be liable to pay compensation for rectification. So, if you were to build an extension which encroaches on the neighbour’s right to light, you may need to take the extension down. This could affect the property value as you could have lost a valuable addition to the home. This could in turn affect your mortgage as a decrease in value could jeopardise a mortgage lender’s security.

What happens if there is excessive use?

The use must not exceed that which was granted or acquired. As we note above, an easement must have a clear nature, purpose and use. Land owners who have an easement often complain, not that there is a right to use their land, but that it is being excessively used. It is important to note that in these circumstances the land owner cannot prevent someone exercising their easement because it is being over used.

For example, if you own a piece of land that has a right of way easement allowing anyone the right to walk through it. If someone were to be using it excessively, you are not allowed to stop the right of way of others through your land because of the other person's excessive use.

How can you remove an easement?

There are a number of ways in which an easement can come to an end and all of these can be tested via an application to a court:

Expiration - some end at an expressed date set out within the deed (express grant)
Release – agreement with the dominant tenement (the person or organisation who is in control of the easement) to release the servient tenement (you) from it
Abandonment – the dominant tenement shows they intend for the easement to end
Merge – both the dominant and servient tenant join and are placed under a single title such as if a buyer purchases both pieces of land. Essentially it becomes redundant because the landowner owns both pieces of land and there is no need for a right to use.
Necessity – the necessary reason for the easement no longer exists.
Condemnation – The government takes over the property and essentially condemns it.
Prescription – the servient tenement disallows the dominant tenements use of the easement by continuous, open and hostile use of the easement for at least 20 years.
Estoppel – if an easement is unused, the servient tenement relies on this ‘termination’ in good faith so the dominant tenement cannot enforce its rights. This is a very complicated legal doctrine and by far the most complicated and uncertain to enforce.