Easements are rights enjoyed over land that (usually) make the enjoyment of the land easier. There are four essential characteristics of an easement:
1. There must be one piece of land that enjoys the easement (the dominant tenement) and one piece of land over which the easement is exercised (the servient tenement)
2. The easement must benefit the dominant tenement – making the use of that land easier or better
3. The two pieces of land must be in separate ownership
4. The right must be capable of being classed as an easement – sufficiently definite, given by one owner to another, for example a right of way or a right to light
Easements can be acquired by statute (the law grants them), expressly (by a written agreement between the two owners), by implication, for example, because they are necessary to get to the land, and by ‘prescription’
Prescription allows an easement to be claimed if the right has been used, without interruption, for at least 20 years ‘as of right’ – the user honestly believing that they have the right and exercising it openly and without permission. Such easements can only be claimed by one owner against another – a tenant could not make such a claim.
Once an easement is established there are often concerns as to its extent, for example, the width of road over which a right of way can be exercised, and the extent of its use. A right of way may have been in existence for many years but it may only be wide enough for a small car – there is no right to expect the width of the right of way to ‘grow’ as the width of a standard car increases. Similarly the amount of use of the right is set from its grant. If a right of way is for the benefit of one house on a large plot of land, it cannot be extended, should the land owner build three more houses in his garden, to be a right of way for the cars from four houses.
Easements for access, running of services, light, drainage etc are commonly included in modern land transfers. The main problems arise, although not exclusively, for older properties where the express rights were not detailed in the old title documents. The fact that such express rights are not in existence often only comes to light on the sale of the property. There may then be a need to make a claim to the right and/or agree documentation with the neighbours. This can take some considerable time. It is, therefore, vital that you consult your legal professional as early as possible in the course of a sale in order to resolve any problems in good time
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