Real Estate Building Blocks - Easements

It would be rare to encounter a property deal which did not involve easements, from the sale of a plot of land, the grant of a lease or indeed the express grant of an easement on its own. But what actually are easements?

What is an easement?

An easement is a right benefitting one piece of land that is enjoyed over or burdens another piece of land. Easements can be positive or negative. A positive easement allows the owner of the benefitted land to do something on the burdened land, such as drive a car over a track or discharge foul water through a private drain. A negative easement limits what the owner of the burdened land can do on their own land, such as carrying out development which would impinge the benefitted land’s rights of light.

What separates an easement from other similar rights?

Easements hold a lofty status in the law of real property as they are an "interest in land" (also known as a proprietary interest), which means rather than being mere personal rights, they are capable of binding future owners of both pieces of land. Contrast this with the position of a licensee under a licence, who has a personal permission to do something so cannot pass that permission onto someone else.

What are the characteristics of an easement?

To be capable of being an easement, a right must have the following four key characteristics:

• As explained above, the right must be linked to two pieces of land.
• The right must "accommodate" the benefitted land. This means that the easement must have some connection to and confer a benefit on the benefitted land as opposed to the owner. There must also be a clear connection between the two pieces of land, which includes a close degree of physical proximity.
• The two pieces of land must be owned by different persons. 
• The right must be capable of being granted at law. If, for example, the owner of the benefitted land did not have mental capacity, they could not grant an easement.

How are easements created?

This is undoubtedly one of the more confounding areas of property law but the main methods by which easements can be created are:

• Express grant, either by deed of easement or more commonly in a transfer deed or lease
• Implied grant, i.e. the easement is implied into a transfer or lease, despite there being no express words granting the easement, and
• Prescription, i.e. long user, typically for a continuous period of at least 20 years

Easements can also be created by statute, will, contract or the equitable doctrine of proprietary estoppel, but these are all less common than the three mentioned above.

Certain categories of easements must be registered at the Land Registry to take effect at law and to ensure that they bind future owners of the burdened land. It is essential that the registration formalities are complied with in the cases where this is relevant, otherwise the easement granted can prove to be worthless.

Why are easements important?

It is a surprisingly common misconception that just because you own a piece of land, you must surely have all the necessary rights to use that piece of land. That is far from being the case. One could own a plot of land surrounded on all sides by other privately owned land. If there isn’t a right of way over the private land to the public highway network, then the landowner could be effectively ransomed by the adjoining landowner/s. Similarly if there is a right of way but it is for agricultural purposes only, and the landowner has purchased the land to build a house, they will have the same problem. These hypothetical scenarios are indicative of issues frequently encountered in practice and illustrate the importance of easements.

Points to consider

On any acquisition or lease, the prospective purchaser/tenant must consider what rights it will need to use the property for its intended purpose. Where the existing rights are not adequate (or none exist), the buyer/tenant will need to negotiate with the seller/landlord for the easements it requires or by separate agreement with a third party if the seller/landlord doesn’t own the land over which rights are sought. Where development is proposed, it is more likely that the benefit of existing easements may not extend to cover the intended use of the property (which may be radically different from the current use) requiring existing easements to be modified or entirely new easements granted.

The law of easements is complex area and the above is by no means a comprehensive summary. If you have any questions on the above or require advice in this area, please contact our real estate team.