What is an easement and what should you avoid as a developer?

Easements can play a critical role in successful development. Where a proposed development site does not directly adjoin the public highway, developers will need to rely on access and services being provided via land in third party ownership. This is often the case for “infill” development sites in densely populated areas.

In addition to ensuring that the development site has the benefit of all rights required for the proposed use, developers will also need to consider whether the site is burdened by any adverse easements which might undermine its development potential.

Where easements have not been properly investigated and understood, this can delay or even sterilise the development. For this reason, it is crucial for developers to consider the impact of easements at an early stage and take legal advice before incurring significant costs securing planning permission or funding for the development.

What is an easement?

Put simply, an easement is a right over a piece of land (the servient land) which exists for the benefit of another piece of land (the dominant land).

Easements have four essential characteristics, all of which must be satisfied in order for an easement to exist:

• The dominant and servient land must both be clearly identifiable.
• The dominant and servient land must be owned by two different people.
• The right must be of a nature which benefits the dominant land itself and not merely which confers a personal benefit to the landowner (such as a right which benefits the landowner’s business).
• The right must be capable of registration at the Land Registry

An easement can be positive in nature (e.g. a right of way or a right to run services through the servient land) or negative (e.g a right to light or support).

Types of Easement

Easements can arise in a variety of different circumstances. The most common types of easement are:

• Express easements/ easements by grant – express easements must be created by deed between the dominant landowner and the servient landowner. Where the servient land is registered, an express easement must be registered at the Land Registry against the title to the servient land. It is therefore generally straightforward to check for express easements when considering the acquisition of a development site, provided the dominant land is registered.
• Implied easements – easements can be implied at law due to necessity (e.g where a piece of land is left landlocked after a sale of part and could not otherwise be accessed).
• Easements by prescription – prescriptive easements arise where a right has been continuously exercised over another’s land without the landowner’s permission for a period of at least 20 years.

Easements are not always easy to spot and it is common in practice for easements to arise as a result of long use. It is therefore crucial for prospective purchasers of development land to check not only the legal title to the land but also the position on the ground, and raise appropriate enquiries with the seller at an early stage.

Interference with an Easement

The impact which adverse easements may have on a development should not be underestimated. A prudent developer will take steps to investigate easements at an early stage, before committing significant funds to a project. In particular, developers should be mindful of the risks of commencing works which might amount to interference with an easement.

Interference with an easement does not necessarily need to amount to the total destruction of the easement in order to be actionable by the dominant landowner. In Lea v Ward (2017), a developer was sued for interference with an easement as it had erected fencing which obstructed the claimant’s right of way. The claim was successful even though the fencing was temporary and an alternative route had been provided.

The remedies which a dominant landowner may have for interference with an easement include:

• Injunctions – Most worrying for a developer is the possibility that the dominant landowner may obtain an injunction to halt the development. Injunctive proceedings can cause significant delays and additional cost to the developer, or in a worst case scenario may prevent the development from proceeding altogether.
• Declarations – Declarations can be sought from the court to clarify the existence, scope and extent of an easement. It is also possible for the developer to seek a negative declaration that the proposed development will not amount to interference with an easement.
• Damages – A developer may be liable to pay damages to the dominant landowner where it has interfered with an easement and that interference has resulted in a loss to the dominant landowner. Exemplary damages may also be awarded where the defendant stands to make a profit, which will often be the case in the context of development.

It is important to note that even easements which have not been exercised for years generally remain enforceable unless they have been positively terminated. Courts are reluctant to treat an easement as having been abandoned unless the dominant landowner has demonstrated a positive intention to permanently give up the right.

Developers should tread very carefully before taking any steps which may constitute interference with an easement. Legal advice should be sought at an early stage to assess the risk of enforcement action being taken. In addition, developers should always consider alternatives to interfering with an easement such as whether the development can be undertaken so as to accommodate the easement.

Excessive Use

Where a developer hopes to rely on an easement for the benefit of a proposed development, such as a right of access or a right to lay services, it is crucial to ensure the scope of the easement is sufficient for the intended use. The fact that the land already benefits from an existing easement is not necessarily the end of the matter.

An easement cannot be used in a manner which exceeds the original purpose for which it was granted. Developers must exercise particular caution where a change of use is proposed in connection with the development, as there is a high chance this may undermine the ability to rely on existing easements.

Whether use of an easement is excessive depends on the nature, purpose and amount of the use. The relevant legal test is whether the proposed use by the dominant landowner will substantially increase the burden on the servient land. A radical change in the use of the dominant land, such as from agricultural use to a large residential development, will often result in the use of an existing easement being deemed excessive.

The legal principles in this area are still evolving and each case will turn on its own facts. In the 2017 case Gore v Naheed, the Court of Appeal diluted the long established rule that an owner of two neighbouring plots cannot rely on a right of way granted for the benefit of one plot as a means to access the second plot. In this case, the second plot was a garage and the use of the right of way was deemed as ‘ancillary to’ the use for the enjoyment of the house. By contrast in Mill v Estate of Partridge (2020), the High Court found that the diversification of a plant nursery’s business to include a tearoom exceeded the scope of a right of way granted for the purpose of agricultural use.

Where there is a dispute concerning the scope of an existing easement, the servient landowner may bring a claim for trespass as well as claiming injunctive relief. It is therefore important to assess the scope of existing easements from the outset to ascertain the risk of the development becoming the subject of a dispute.

Taking a new easement over private land

In cases where the proposed development site does not have the benefit of any existing easements, the developer may need to take a new easement over third party land in order to provide access or services to the development site.

Where a new easement is required, thorough title due diligence should be carried out as early as possible to check for any potential obstacles which may hinder the grant of the easement. These may include:

• Restrictions on the title to the servient land – Where the servient land is subject to a mortgage or other title restrictions, consent from the bank or other third party with an interest in the servient land will generally be required for the easement to be granted.
• Existing rights and covenants – The servient land may be subject to existing rights or restrictive covenants which are in conflict with the proposed easement. A well advised landowner will require the developer to indemnify it for any liabilities incurred to third parties as a result of the easement being exercised. As such, the developer will need to consider the risks associated with any existing rights and covenants which burden the servient land.
• Mining and mineral rights – It is possible for the rights to mines and minerals below the surface of land to be severed from the freehold title to the land (so called ‘manorial rights’). If the easement required will involve digging on the servient land, it is important to check whether manorial rights have been severed from the title to the servient land. If this is the case, any digging on the land could result in a claim against the developer for trespass. This risk can sometimes be mitigated by the develop taking out an indemnity policy.
• Common land – Where land is common land, members of the public may be entitled to exercise rights over it such as rights to graze animals. This can result in restrictions on the owner’s ability to develop and use the land. There is a statutory prohibition on carrying out certain works on common land without the consent of the Secretary of State, including digging ditches and trenches and erecting fences. Obtaining consent can be a lengthy and uncertain process and it is therefore essential for developers to check whether any servient land over which easements are required is registered common land at an early stage.

If you would like advice and assistance regarding the above article, please call us on 01603 610911 and ask to speak to our Commercial Property Team or email info@leathesprior.co.uk.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.