In the world of property law, few concepts are as important yet as frequently misunderstood as easements. Whether you are purchasing land for development, acquiring commercial premises, or dealing with boundary or access issues, understanding the nature and implications of easements is crucial.
At Blackstone Solicitors, we advise clients across England and Wales on all aspects of property law, including the creation, registration, and enforcement of easements. In this article, we explore what an easement is, the three main types, and the legal considerations every landowner or developer should be aware of.
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What Is an Easement?
An easement is a legal right enjoyed by one landowner over the land of another. It allows the benefitting land (known as the dominant tenement) to make use of the burdened land (known as the servient tenement) in a specific way. Crucially, the easement must be linked to the land itself, not just a personal agreement between individuals.
The most common example is a right of way, where the owner of one property is entitled to pass over another’s land to access their own. But easements can take many forms and play a vital role in property use, development, and value.
For an easement to be valid, it must satisfy the four conditions set out in the leading case of Re Ellenborough Park [1956]:
- There must be a dominant and a servient tenement.
- The easement must accommodate the dominant tenement (i.e. benefit the land, not just the person).
- The dominant and servient owners must be different persons.
- The easement must be capable of forming the subject matter of a grant.
Why Are Easements Important?
Easements can significantly impact the use, development, and value of land. For instance:
- A developer may need a right of access over neighbouring land to facilitate construction.
- A homeowner may rely on a drainage easement for sewage to pass through adjoining land.
- Commercial premises might have easements for vehicle access, loading, or utility connections.
Without a properly documented easement, disputes can arise, and land use can be restricted. For this reason, identifying and understanding easements during property transactions is an essential part of the due diligence process.
The Three Types of Easements
While easements can come in many forms, they are generally classified into three main types:
- Express Easements
An express easement is one that is formally created by deed—typically at the time of a land sale, lease, or agreement between adjoining landowners. These easements are deliberately granted or reserved and are legally binding.
There are two ways an express easement can be created:
- Grant: Where the owner of land gives someone else the right to use it in a certain way (e.g. a right of way across a field).
- Reservation: Where the landowner sells part of their land but retains a right over it for their own use (e.g. access to a retained parcel).
To be legally enforceable, an express easement must be:
- Created by deed (under section 52 of the Law of Property Act 1925).
- Registered with HM Land Registry (if the land is registered), or noted on the title deeds (if unregistered).
- Clearly defined in terms of its nature, extent, and location.
Well-drafted express easements can avoid disputes, clarify responsibilities (such as maintenance), and ensure that future owners are bound by the rights and obligations.
- Implied Easements
An implied easement arises not through express wording but through implication, based on the circumstances of the land transfer. These easements are not created by formal agreement but inferred by the courts or through statute.
Implied easements can occur in several situations:
- Necessity
Where a landowner sells part of their land and access to that part would be impossible without crossing the retained land, the law may imply a right of way by necessity. The easement is granted because the land would otherwise be unusable.
- Common Intention
If both parties intended the land to be used in a specific way that requires the use of adjoining land, the court may imply an easement to give effect to that shared intention. For example, if a buyer acquires land to be used for vehicle access and there is only one feasible route, an easement may be implied.
- Wheeldon v Burrows Rule
Under this doctrine, where land is sold and the seller had previously used one part of the land for the benefit of another part (a “quasi-easement”), that right may pass to the buyer as an implied easement if it is:
- Continuous and apparent;
- Necessary for the reasonable enjoyment of the land;
- Used at the time of the sale.
Implied easements can be complex to prove and interpret, especially if there is no clear documentation. Legal advice is often needed to establish whether such a right exists.
- Prescriptive Easements
A prescriptive easement arises through long-term use rather than formal agreement. If someone has used a right over another’s land for a significant period—without permission, secrecy, or force—they may acquire a legal easement by prescription.
The usual requirements under common law or statute (especially the Prescription Act 1832) are:
- The use has continued for at least 20 years.
- The use has been uninterrupted, open, and as of right (i.e. without force, secrecy, or permission).
- The use must be for a specific and identifiable purpose (e.g. walking, driving, or water drainage).
Prescriptive easements are most common in rural or long-established urban settings where informal rights of way or utility routes have existed for generations. However, proving a prescriptive easement often requires detailed evidence, such as witness statements, historic maps, or aerial photographs.
Legal Considerations and Risks
Easements are legally binding rights that “run with the land,” meaning they pass to subsequent owners and cannot usually be revoked unilaterally. As such, they have serious implications for land value, development potential, and property rights.
Key legal issues to consider include:
- Registration: Express easements should be registered with HM Land Registry to ensure they are enforceable against third parties.
- Clarity: Vague or poorly worded easements can lead to disputes over extent, purpose, or maintenance responsibilities.
- Obstruction: Blocking or interfering with an easement can give rise to legal action, including injunctions or damages.
- Termination: Easements can sometimes be extinguished by agreement, abandonment, or where their use becomes impossible.
Solicitors play a vital role in drafting, interpreting, and enforcing easements. During property transactions, our team at Blackstone Solicitors carefully reviews title documents, Land Registry entries, and historic deeds to identify any rights or restrictions that may affect the land.
Conclusion
Easements are an essential part of property law and can be a powerful tool or a serious limitation depending on the context. Whether express, implied, or prescriptive, these rights can have lasting consequences for landowners, developers, and occupiers.
At Blackstone Solicitors, we offer expert guidance on all matters relating to easements. Whether you are seeking to create, rely on, or challenge an easement, we can provide the clarity and legal support you need to protect your property interests across England and Wales.
We have a proven track record of helping clients deal with the legal aspects of easements. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact Our Commercial Property Solicitors
It is important for you to be well informed about the issues and possible implications of commercial property law. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Commercial Property solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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