Developer Easement Advice

What are the characteristics of an Easement?

An easement is a right which a parcel of land – known as the dominant land – has over another parcel of land – known as the servient land. Easements can be described as positive (e.g. a right of access) or negative (e.g. a right of support).

The essential characteristics which must be satisfied for an easement to exist are:

• both the dominant and servient land must be clearly identifiable;
• the dominant and servient land must be owned by different owners;
• the nature of the right must be such that it benefits the dominant land and not be merely conferring a personal benefit to the owner of the dominant land; and
• the right must be such that it is capable of registration at HM Land Registry

Types of Easements

The most common types of easements are:

Express grant – details will be set out in the deeds or title registers of a property.  Such an easement may happen when part of a property is sold with the seller wanting to maintain rights to benefit the land they are retaining such as a right of way.

Prescription – where a right has been continually exercised over land owned by someone else openly and without permission for a period of at least 20 years.

Implied – similar to an express grant, this type of easement also may happen when part of a property is sold but the easement is implied due to necessity for example where the land being retained or sold would otherwise be landlocked.

Developing land with existing easements

As will have been seen above, easements can arise as a result of long use.  Therefore, not only is it important to check the legal title but also the position on the ground making a site visit essential. Then, if there are any discrepancies, the appropriate enquiries can be made with the seller early on.

A developer needs to make itself aware of any existing easement(s) on the land as this could have an impact on what can and cannot be done with the land.  If the land has an easement such as a right to lay services and the developer wishes to rely on this right then it will be important to ensure that the easement is sufficient for its intended use.  The easement should not exceed its original purpose.  Whether a use is excessive will depend on the legal test which is: does the proposed used by the dominant owner substantially increase the burden to the servient land.

New easements to be granted

If there are no existing easements on the land then the developer may need to take a new easement over third party land for access or services to the development.  If this is the case then title should be reviewed at an early stage to check for any obstacles which could prevent a new easement being granted.

If you need any advice on easements, please contact a member of our commercial property law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.