Easement Overview
Easements and Similar Rights
An easement is a property right enjoyed by one property over an adjoining property. It must benefit the property concerned as such. It cannot be a benefit conferred on the owners or occupiers in a personal capacity. An example is a right of way, which affords access to one property, over another. The right benefits and accommodates the land to which access is afforded and qualifies as an easement.
The categories of easements are not closed. The courts recognise that as society’s needs change, new types of easements may be recognised. In modern times, the courts have recognised the right to use common areas and facilities for recreational purposes The right to park a car is a valid easement.
An easement is a property right in itself. An easement must be sufficiently certain and capable of definition so that it could be encompassed in a deed. It attaches to the land which is benefitted. It cannot exist separate from the land. Therefore, if the land is sold, the easement must generally pass with the property.
An easement is a burden on the adjoining land over which it applies. It must be registered as a right over the land affected, so as to be valid against all comers, in the same way as a lease or mortgage. The easement can be transferred and conveyed, although not independently of the land which it benefits.
Because the easement itself is property, it is necessary to register the deed creating the easement against the affected land. Easements arising by long use, do not require registration until they are declared by court order.
As with other property rights, an easement may be owned for a freehold or leasehold estate. An easement can be leasehold. This is commonly done where it is necessary to provide for the collection of a service charge and management structure in relation to common facilities.
For example, the right to use common areas in an industrial estate (e.g. service roads, malls and common facilities) may be granted by way of a long lease, which provides for a service charge. This effectively makes the easements conditional on payment of the service charge and compliance with other obligations.
Creation of Easements
Easements can arise in a number of ways. They may be granted by deed made by the owner of the land affected. As with other property rights, the rights will bind the successors of the land affected for the benefit the successors of the land that is benefitted. In this way, the rights affect the land and not just the owners of the land for the time being.
If any person, including the owner of the land affected, interferes with the exercise of the easements (e.g. blocking the right-of-way or cutting service lines) the owner of the easement may take legal action for compensation or for a court order restraining interference with the easement. This is similar to a legal action for trespass and enables the easement holder to protect and assert the right.
In the same way, that title to land can be acquired by long use (squatting) it is possible to acquire an easement by long use. The rules in this area are complicated but have been modernised and simplified in the recent Land law reforms. In order to definitively establish the easement, it must be claimed in court proceedings and be registered in the Land Registry.
Generally, an easement can arise where it has been openly exercised “as of right” for twenty continuous years. The use must be open and apparent. Use as of right means that it has been used as if the user had the legal right to do so. If it is used by consent, (e.g. under the terms of a lease from the affected owner), it is not used as of right and no easement is acquired. In the absence of a contract or estoppel, it can be revoked at will.
The recent land law reforms have lowered the requirement for twenty years use to twelve years. Longer periods of use are required where the affected land is owned by Government authorities (30 years or more). There are transitional arrangements in force as the relevant period is reduced. Once 12 years use expires after new legislation comes into force, an easement may be asserted.
An easement acquired by long use affects land without being registered. Often, they will be apparent from inspection (e.g. right of way). When an easement is claimed by reason of long use, it must be established in court proceedings and registered in order to make it a legal easement. Up to this point in time, the easement exists and is capable of being asserted. However, it is subject to certain vulnerabilities.
Limits
As with acquiring land by squatting, the time limits may not run, while the effect land is leased. Where the affected land is in the possession of a tenant, an easement may be acquired against the tenant after 12 years. However, his landlord will not be bound unless and until another 12 years of use takes place.
Where property is held by a person who is under the age of 18 or of unsound mind, the relevant time period for establishing an easement, will not necessarily run until the affected person is of full age and sound mind. The court can take account of whether it would be reasonable for a guardian or attorney to take action on behalf of the person concerned. After thirty years’ use, the right may be acquired where the court considers it reasonable that steps should have been taken.
An easement may be lost, where has not been used for twelve years. An easement may also be extinguished if it is a can be proved that there is an intention to abandon it.
An easement can arise by implication, although not mentioned in a deed of transfer. An implied easement is only a presumption. The implication may be negated by the clear wording or the circumstances.
Where property is sold and for example, a right of way is necessary over retained land in order to beneficially use and enjoy it, an implied right of way over the land retained by the seller may be implied. The easement must be necessary for the reasonable enjoyment of the land. Easements in favour of buyers will more readily arise on the basis that the seller must not derogate form what he sells.
An implied easement will not readily arise in favour of the seller. An easement of necessity may arise where it is absolutely necessary. This may arise where the land would otherwise be landlocked.
Easement Like Rights
Profits are a category of rights similar to easements. The difference between a profit and an easement is that a profit can exist independently of any adjoining land. Profits are usually found in agriculture. Examples include grazing rights, right to take turf (turbary), shooting and fishing rights.
Public rights are similar to easements. They are not required to attach to adjoining land, and are enjoyed by the public or a class of the public. Public rights may be acquired by long use or custom, in much the same way as easements.
A highway is a road or other way that may be used by the public. A highway may be created by being dedicated as such. Dedication may take place by deed, by symbolic act or behaviour or by presumption. A highway may be presumed to have been dedicated, after a relatively short number of years’ use.
A dedication to the public can arise on the basis of a presumed grant. If a roadway is laid out as such and permitted to be used by the public, a dedication of the the roadway to the public will be readily presumed. This may be less than the twelve or twenty years periods required by easements.
Statutory Rights
Planning authorities have a statutory power to create a public right of way.
Most water mains and sewers are vested in the Local Authority. Once vested, the Local Authority has an inherent statutory right to keep them in place, maintain and repair them. They have powers to lay new and renew pipes, drains, wires and cables. These service lines are put in place with statutory authority and this gives them a right to be maintained in place and used for the passage of services.
Local Authorities have powers to enter land lay pipes, drains and cables. Private persons have rights to connect with water mains and sewers, subject to obtaining planning permission and complying with certain conditions. A road opening licence is required to open a road and make the connection. A local authority approved and insured contractor is usually required.
Electricity undertakers have similar powers to create wayleaves compulsorily for the purpose of the transmission of electricity. Fixed line telephone undertakers have similar rights. Compensation for the putting in place of such rights is usually required.
Most public roadways are vested in and are the responsibility of the Local Authority. National roads are the responsibility of the National Roads Authority. Once the authority takes over the road concerned, it is responsible for the repair, maintenance of the road and street furniture and lighting. The sewers and water mains has a slightly different legal basis, and generally vest automatically in the authority, for public health reasons.
Private Roads
Strictly speaking, a landowners is presumed to own the land fronting onto a road to the centre of the roadway. This ownership is largely of limited value because relates only to the subsoil and is subject to the rights of the public and the local authority in the roadway. The right of the public is to pass and repass. If they, say picket the property, this is a traspass because it exceeds the deemed consent to pass and repass on the highway.
Certain roads are dedicated as highways but are not are not or are not yet taken over or “taken in charge” by the local authority. This is because the original landowner, who may be a has laid them out and dedicated them to the public In some cases, this is deliberate and there may exist arrangements by which contributions are made to a service charge to finance the maintenance of roads and services.
In many industrial estates, the internal roadways in common with other facilities and common services are subject to a scheme of management. Often the units in the estate are held under long leases, which provide for service charge and a management structure. Sometimes the units are held freehold but the easement to use the common facilities roads are services are held under long leases. The lease makes the right to use the facilities conditional on payment of the service charge and compliance with the lease covenants.
Roads and service may be used in fact without any legal rights to do so. Practical problems may also arise where there is no scheme of maintenance for a private road and facilities. The services may be used but there may be no means of legally compelling all users to contribute to the cost of maintenance.
In other cases, it may be intended that the road be taken over. There may be a planning permission condition which contemplates that the road be taken over. There may be conditions to be fulfilled and there may be a bond. The local authority has broadly defined duties to take certain roads in charge, but there may be a considerable delay before this is done.
Legal risks can arise in respect of estates which are due to be taken over by the local authority after completion of development. If the original developer does not properly complete the roads, lighting and other infrastructure there may be a delay in the taking in charge of the road.