New to Easements? Don’t worry, we’re here to explain everything. An easement is a right that benefits a piece of land by burdening another piece of land. There are many ways to create an easement, but it is important to understand how easements work and the complications they come with, in order to avoid problems.

Characteristics of an easement

The case of Ellenborough Park [1995] sets out the main criteria, which a right must meet in order to be an easement.

• You need the dominant land that benefits from the easement and servient land that the easement will be exercised over.
• The easement must benefit the dominant land and cannot merely be a personal advantage to the owner of the dominant land.
• The dominant and servient landowners must be different from one another.
• The easement must be capable of forming the subject matter of a grant and cannot be too wide or too vague.

Creation of an easement

Easements can be created by either of these three things:

• Express grant – this must be created by deed
• Implied grant – this can arise when necessary for the enjoyment of a party and usually arrives when one piece of land is split and sold in separate parcels
• Prescription – this can be created after a right has been exercised for the benefit of dominant over servient land in over a long period (in excess of 20 years), without permission or objection from or by the servient landowner.

Equitable easements

Equitable easements can happen when a right is being granted by either a propriety estoppel or when a contract to grant a legal easement remains incomplete.

Overriding easements

Some easements have the ability to become an overriding interest. In other words, when they are not referred to on the property’s title register held at the land registry, they can still take effect and bind the land. This can include the following:

• All legal easements existing at the time of first registration
• Any easement that was an overriding interest before the Land Registration Act 2002 came into force
• Implied easements and prescriptive easements

Positive v negative easements

A positive easement provides the owner of the dominant land with a permit to carry out an act on the land that belongs to the servient owner. For example, this could be the right to walk over a footpath. A negative easement, however, a negative easement benefits the dominant land by restricting the actions of the servient owner. This could be something such as blocking light.

Being aware of easements

An easement won’t always be documented on the servient landowner’s title register held at the land registry. At the same time, the easement may not be so obvious. Despite the fact that the seller must disclose non-obvious easements which they are aware of, you may want to consider these questions when viewing a property:

• Do you have to cross over someone else’s land to access the property?
• Does someone else have to cross over the property’s land to access their own property?
• Are there any signs of someone crossing over your land such as a worn grass path at the bottom of the garden?
• How many properties are nearby? If a property close to you has a right to light, this could potentially restrict you building an extension on the property or planting trees and shrubs.

If you have any plans for the property that you intend to purchase, you must inform your solicitor. That way, your solicitor can advise you accordingly and discuss any issues that may affect your plans.

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