Rights of Way and other Easements





What is an Easement?

An easement is a right which a landowner has over neighbouring land which makes it easier to use his own land - hence easement. For example, if land does not adjoin the public highway but is separated from it by land owned by another person, a right of way over that land makes use of the land-locked land "easier".

Rights of way are a common easement. Other examples include a right to lay pipes or cables under a neighbour's land to receive services such as water and electricity or a right to discharge waste water either into a public sewer by means of a pipe over the neighbour's land, or by means of a soakaway.

Easements are generally negative in character. If there is a right of way over your land you must not obstruct it but generally you are not obliged to take positive steps to keep the surface in good repair. The neighbour who has the right of way can repair the surface but does not have to. This is in line with the conception that a positive obligation to do something is not compatible with ownership of freehold (as opposed to leasehold) land, so that whilst a positive covenant can be enforced between the original contracting parties, it is only negative covenants which can be enforced against subsequent owners.

Covenants to contribute to the cost of maintenance 

Because an easement of a right of way does not automatically make either landowner liable to repair, but both parties have an interest in the surface being maintained, it is usual, when granting an easement, to include a covenant in favour of the landowner over whose land the right of way runs, requiring the landowner exercising the easement to contribute a percentage to the costs of maintenance. On the face of it this is a positive covenant unenforceable against subsequent owners but the courts have generally enforced such covenants in a negative way by holding that, whilst the party who has the easement is free to pay or not to pay the contribution to maintenance, if they elect not to pay then they lose the right of way. 

Limitations on Easements

For each easement there will be an express or at least implied limitation on the extent of the easement. A right of way will generally be limited to a certain width along a certain route and may, for example, be a right of way on foot only so that vehicles are not permitted. 

The easement is limited to the land for whose benefit it is granted. A householder who has a right of way to their house from the public road over land owned by a neighbour, cannot buy further land behind and expect to be able to use the existing right of way to gain access through his original land to the new land behind.   

How are Easements Created?

The surest way to create an easement is by deed. This can be a deed executed by both landowners with the sole purpose of creating the easement, but, more often, the creating of an easement is just one part of a deed transferring ownership of a piece of land. For example the owner of a large piece of land may sell part of it, at the same time granting to the buyer a right of way over the retained land.

Granting an easement explicitly is to be preferred because the exact extent of the easement can be set out. However in certain circumstances an easement will be implied if not explicitly stated. For example if the owner of land containing two houses sells one house, and there is a made up drive from the public road to the house which is sold which passes over the retained land, the grant of a right of way will be implied. 

If a landowner (or several landowners in succession) has acted, for at least 20 years, as if they had an easement then it is presumed that an easement exists even if no explicit (or implied) grant can be found.

Registered Land

The Land Registration Act 2002 is designed to avoid, or at least reduce the likelihood of, a purchaser being bound by interests affecting the land which the purchaser is unaware of. Some interests which affect registered land have to be registered and, if not registered, are lost when the registered land is sold.

Any easement can, and in some cases should, be registered, but even if an easement is not registered against the land it burdens it will not be lost when that land is sold if:-

  • The buyer knows about it, or
  • It would have been obvious on a reasonably careful inspection of the land over which the easement is exerciseable, or
  • the person entitled to the easement proves that it has been exercised in the period of one year leading up to the date of sale. 
    

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice   

This page was lasted updated in October 2015          Disclaimer