What is an Easement on a Property?

Easements are rights that are granted over land belonging to someone else. Anyone that is buying a property should always check the registered title and inspect the property to determine if there is an easement in relation to the land.

What is an easement?

An easement is a right that benefits a piece of land (the dominant land) that is enjoyed over another piece of land owned by someone else (servient land). Easements are for a variety of purposes, such as:

• A right of way
• A right to support
• A right to light

Easements are usually positive, allowing the owner of the dominant land a right to do something. There are rare occasions where they are negative and prevent the owner of the servient land from doing something on its own land that affects the dominant owner (such as affecting the dominant owner’s right to light or to park).  

Easements are permanent though can be ended where:

• Ownership of the dominant and servient land is no longer separate and they become joined
• The dominant owner expressly releases the servient owner via deed
• If there is implied release since there is non-use for more than 20 years of the easement

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What are the requirements of an easement?

There are four essential characteristics of an easement:

• There has to be a dominant and servient land
• The easement must accommodate the dominant land- this means that there must be a direct beneficial impact on the land itself and not just for the personal benefit of the owner
• The dominant and servient owners have to be different people
• The right has to be capable of forming the subject matter of a grant- this is because it is a registrable property right and so must be able to be granted by deed

The necessary requirements for an easement to be capable of being granted by deed include:

• The parties must have the necessary capacity
• The easement must be clearly defined
• Usually it should not include the servient owner paying any money
• The easement should not be so wide as to remove the servient owner’s possession of the land

How is an easement created?

Easements can be created:

• Expressly
• By implication

Express easements

Express easements are created by deeds. Most commonly the easement is granted in a transfer of legal estate or the grant of a lease if the new owner will enjoy a right over the land retained by the transferor or landlord. Generally, the easement has to be registered at the Land Registry and that results in any future buyer of the land that is affected by an easement will be made aware that there is a right over the land he is considering purchasing.

Legal and equitable easements

Other methods of creating a legal easement include:

• Statute- there are various statutes that will create easements and will be enforceable under the general rules covering easements rather than needing to be registered
• Will- this is possible if the testator leaves dominant and servient land to different people
• Prescription – this relates to the concept that exercising a right for a long time without interference should be able to be legitimised

A legal easement binds all future purchasers, regardless of whether they had knowledge about it. Where an easement is not noted on the title of the servient land then it can only take effect as an equitable easement. Equitable easements only bind a purchaser that has knowledge

Implied easement

An implied easement will be based on the relevant facts, for example how the land has been used over a period of years. To determine whether there is an implied easement, various factors will be considered, such as the common intention of the parties and if the right is a necessity. Since this type of easement is not clearly set out in a legal document it can result in the easement being either much wider or more restrictive than intended.

Are there any remedies available if an easement is interfered with?

There are various remedies available for the dominant landowner if an easement is interfered with:

• A court declaration on the existence of the easement to protect it in the future (including in relation to those that take over the title in the future)
• Damages can be granted, possibly with other remedies
• An injunction can be awarded where damages would not be sufficient but this is only binding on the current parties
• Abatement where the owner of the dominant land is allowed to enter the servient land to correct the issue.