Easements - Know Your Rights

The word ‘easement’ is typical of the legal profession’s love of technical terms which are not commonly used outside legal circles. It is, in fact, a very important term for anyone who owns or is about to buy property as it means a right enjoyed over land.

There are a whole host of rights which are classified as ‘easements’ from rights of way to rights to lay drains. What is not commonly known, however, is that a certain type of easement does not grant identical rights in every case. The extent of your rights is governed by the exact words used when the right is granted.

An example of this is an easement which gives you a right of way over a pathway running across your neighbour’s garden. Such a right of way will almost always be limited by the words ‘on foot only’ or ‘a pedestrian right of way’. In other words you cannot drive a car over the path. If you want to be able to drive a car over a right of way then the wording of the right should include the words ‘a vehicular right of way’ or ‘with vehicles’.

Sometimes a right of way will be restricted to a certain purpose. A right of way may be expressed to be limited to gaining access to a particular property or for a particular type of use, for example, agricultural purposes.

Here are a few examples of where the wording of easements can give rise to possibly unintended consequences:

A right to lay an electricity cable over a neighbour’s land does not require the owner of that land to enter into an agreement with the electricity distributor. As a result the distributor may refuse to lay the cable.
A right of way does not require the owner of the land over which the right of way is enjoyed to maintain the surface of the right of way (the land cannot, however, be allowed to deteriorate to the extent where the right can no longer be exercised).
A landowner can install speed bumps on an access road without the consent of those who enjoy a right of way over that road.
A right to use a water pipe does not automatically include a right to lay a replacement pipe if the original pipe falls into disrepair
A right of way over land does not entitle you to park on that land
Someone with the benefit of a right of way can insist on exercising that right over the exact route specified when it was originally granted even if you provide an alternative route which is just as convenient. This can frequently prevent the construction of an extension if a right is enjoyed over land immediately to the rear of a property.

The exact wording of easements can be especially important to property developers as very often a developer may want to lay new utilities across a neighbour’s land or upgrade the surface of a right of way. The act of developing land can often mean that a right of way is used more often or for a different purpose (or to gain access to new buildings) from that originally envisaged when the right was originally granted. The wording of an easement can prevent development being carried out or being used when it is completed.

A developer should not just be concerned about the rights the development site enjoys. It is important to establish what rights other people enjoy over the site. These may be spelt out in the deeds but many rights can be acquired by long user and adjoining properties may also enjoy rights of light which prevent the developer building in a way which restricts the light to neighbours’ windows.
At Cousins Business Law, we believe that the only way to establish the extent of all rights whether benefitting or burdening a site is to inspect the site in person. This is why you should always see your lawyer in his wellies and is an example of one of the many traps for the unwary developer.

For advice on easements and all aspects of commercial property contracts contact Steve Petty, commercial property solicitor.

This article is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free 30-minute telephone advice session to discuss your particular circumstances.

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