What is an easement?
An easement is the right of one landowner to make use of another nearby piece of land for the benefit of his or her own land. The land which has the benefit of the easement is referred to as the dominant tenement and the land which is subject to the easement is referred to as the servient tenement. The use of the servient tenement by its owner may also be restricted by the easement. An easement must be appurtenant to land and cannot exist in gross.
How are easements created?
There are a number of ways in which an easement can be created. The first is an express grant by the servient owner to the dominant owner, or by the express reservation of the right when the dominant owner sells part of his land to the servient owner. An expressly granted or reserved easement will only be a legal interest in land if it is created by deed. In some cases, an easement may also be created by implication.
In certain circumstances, an easement can also be obtained by a long period of use of the right, known as an easement by prescription. There are three sets of rules for showing acquisition of an easement by prescription, but whichever method is pursued, a claimant will have to show:
- User for at least 20 years.
- User as of right i.e. without force permission or secrecy, and not during a period when the claimant was in possession both of the benefitted and burdened land. As of right user cannot be established if the user has been licensed, nor can it be established if the user was by force (e.g. contrary to clear express prohibitory signage.)
- User by and against the fee simple.
- Continuous use.
Avoidance of easements
Clearly prescriptive easements can therefore be very useful to the landowner who requires rights over third party lands but which have not been granted expressly or by implication. On the other hand, how do we avoid these prescriptive easements as the third party landowner?
Using licences and permissions – The main reason landowners grant licences to neighbours or third parties is to avoid prescriptive rights. In other words, they grant permission by contract.
Using Signage – signage may give permission to use, or prohibit use. Either way, prescriptive rights are prevented as the user is not without force, permission or secrecy.
Licensing light – enjoyment of light by written consent prevents a light easement (or right to light) by prescription.
Validity of easements
So, whilst easements can be created by express grant, implication or prescription, for a right to validly exist as an easement it must satisfy the four essential characteristics of an easement which are:
- There must be both a dominant and servient tenement;
- The easement must accommodate the dominant tenement;
- The dominant and servient owners must be different people;
- The right must be capable of forming the subject matter of a grant i.e. there must be sufficient certainty as to what the right is
It is also important to be aware that whilst easements created prior to compulsory first registration may not appear on the registered title to land, they remain valid and binding. Standard pre-contract enquires ask the seller of land to confirm whether any such rights exist, however the seller is not liable to disclose patent incumbrances (such as a right of way over worn footpaths, or rights to light benefitting adjacent property) or any matters it does not know about nor could reasonably have known about. An inspection of the property therefore remains an important part of an investigation of title on an acquisition of land.
Whilst it is not compulsory to register an easement created after first registration, it is highly desirable because, while a burden that is capable of registration only exists as an equitable right, it will not bind a purchaser for value. Whilst unregistered, they shall also not rank in priority to other burdens subsequently created. I highlight this point as from experience the parties to an easement don’t always engage a solicitor (who would usually attend to registration formalities).
So, as an example, an easement which would prevent development is identified on land. What can be done?
Obviously an easement may be expressly varied or released by deed by agreement of the dominant and servient landowners. Generally agreement will have a price, and even then it may not be possible to resolve competing interests of landowners.
In some cases the servient owner may be able to show that the dominant owner, by their conduct, abandoned their right to an easement. Abandonment is difficult to prove however, and non-use alone, even for lengthy periods, does not suffice. For example, in a 1992 case the Court of Appeal held that failure to use a right of way for almost 175 years did not amount to abandonment – non-use is not enough. In a recent case the Court of Appeal has reiterated that abandonment is ”not to be lightly inferred” and that “even a major obstruction does not necessarily result in abandonment of a right of way”.
Evolving nature of law on easements
The types of easement in existence and the methods by which an easement can be acquired or created are many and varied.
There is always scope for a new easement to be recognized by the courts, for example this is reflected in three recent cases:
In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd  EWCA Civ 238 the Court of Appeal upheld a decision of the High Court to recognise certain recreational rights as easements, including a right to use a golf course.
In Coventry v Lawrence  UKSC 13 the Supreme Court established a new form of easement – the right to create a nuisance by noise.
In De Le Cuona v Big Apple Marketing Ltd the court confirmed that exclusive car parking rights could amount to a valid easement.
Clearly the categories of easement are not closed and will continue to grow and be judicially recognised on a case by case basis as long as the basic characteristics of an easement are satisfied.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.