Understanding Easements: A Guide for Property Buyers

When buying a property, discovering an easement can be a worrying for buyers. You might wonder who has rights over the land you intend to buy. In this article, we’ll explore what easements are and the options available to you.

What is an easement?

An easement is a legal right that allows specific actions to be carried out on a building or piece of land. Easements are usually binding on all current and future owners of the land. While it’s impossible to list every right recognised by English courts as an easement, here are some of the most common examples:

• Rights of Way: The right to pass and re-pass over a privately owned road or land. This may be by foot or vehicle.
• Right to Light: The right to enjoy light passing over someone else’s land, usually through specific windows or skylights.
• Rights to Water: The right to draw water from a specified source, such as a pipe, stream, or spring.
• Right to Drainage: The right to use a drainage system. Such rights are often granted along with a right of access to maintain any related infrastructure.
• Right to Air: The right to free airflow through a defined channel, such as a ventilation duct.
• Right to Support: Common in semi-detached or terraced housing, where a party wall provides mutual structural support.
• Right to Use Facilities: The right to use shared facilities, such as cables, toilets, or kitchens.

Characteristics of an easement

The landmark case Re Ellenborough Park [1956] Ch 131 established four essential criteria for recognising an easement:

1. Two separate properties: 
   For an easement to exist, there needs to be two pieces of land. One piece of land (the dominant tenement) gets the benefit, and the other piece (the servient tenement) has to allow that benefit, like letting someone walk across it.
2. Different owners: 
   The two pieces of land must be owned by different people. You can't have an easement if you own both pieces because an easement is a right one person has over someone else's land.
3. Benefit to the property: 
   The easement must make the first piece of land (the dominant tenement) more useful or enjoyable. It's not enough that it just makes the owner of that land happy—it has to actually improve the property in some way, like making it easier to get to.
4. Clear and legal right: 
   The right being claimed as an easement must be something that can be clearly defined and legally recognised. It can't be too vague or uncertain. For example, a right to walk across someone’s land is clear, but a right to enjoy a nice view might be too unclear to be an easement.

These rules help decide whether a particular right someone claims over another person’s land can legally be considered an easement.

How is an easement created?

There are several ways an easement can be created, some examples are:

1. Express Grant: 
   An easement can be created when the owner of a piece of land (the servient tenement) expressly grants a right over their land to another party (the dominant tenement). This is usually done in writing, often through a deed. For example, if you sell part of your land to someone else, you might include a written agreement that allows them to use a driveway on your remaining land.
2. Express Reservation: 
   An express reservation occurs when a landowner sells part of their land but keeps a right over the part that is sold. For example, if you sell a portion of your property but want to retain the right to use a path across that land, you would expressly reserve an easement in the deed of sale.
3. Prescription: 
   Arises when someone has used a piece of land continuously and without interruption for over 20 years.
4. Implied Grant: 
   Easements can also be created by implication, meaning they are not expressly written down but are assumed to exist based on the circumstances. 

Can you remove an easement?

An easement can be removed under certain circumstances, some examples include:

1. Merger: 
   An easement is automatically extinguished if the dominant and servient tenements come into the ownership of the same person. This is known as merger. Since an easement is a right one landowner has over another's land, it no longer exists if both pieces of land are owned by the same person.
2. Express release: 
   This occurs when the owner of the dominant tenement (the land benefiting from the easement) agrees to give up their right. This release should be documented in writing, typically in the form of a deed, to ensure it is legally binding.
3. Abandonment: 
   An easement can be lost through abandonment if the owner of the dominant tenement stops using it, this must be accompanied with a clear intention to never use it again.

For more information or advice, the Property team at DPM Legal would be happy to address any queries or concerns.

Although every effort has been made to ensure that the information provided in this article is accurate and correct, the information provided does not constitute any form of advice, recommendation or opinion. DPM Legal Services Limited accepts no liability for any loss or damage, howsoever caused, as a result of any reliance on any information provided.