Easements Part I – Rights over neighbouring land
A common issue in Conveyancing is the presence of or the absence of, rights in favour of another (usually the neighbouring land ) or for the benefit of the property known as ‘Easements’ over the land being sold or bought.
If the Conveyancer is acting for a buyer, they need to check for any easements that may be exercisable over the land for example, a right of way through a garden in favour of neighbouring land, the right for the neighbour to park their car on the driveway of a property and so on.
If the Conveyancer is acting for a seller, they need to check for easements in favour of neighbouring land.
Easements can take two forms of a ‘physical right’ or a ‘passive right’. Examples of a physical easement would be an actual right of way along a visible pathway; the right for the telephone company or electricity company to run cables over or under the land; the running of water pipes and drains under the land for the benefit of the neighbouring properties. An example of a passive easement is the right to light and air.
Where the property or land is subject to an easement in favour of another, it is termed as the ‘Servient Tenement’ where the property or land has an easement over another property or land , it is known as the ‘Dominant Tenement’.
How does the presence of an easement affect a property?
The absence of an easement may make the property unusable and less marketable. The lack of a necessary easement may have a significant detrimental effect on the value of a property. An example would be the property that abuts a private road and which has not been granted an easement for a right of way over the road and thus has no legal right to use the road; the owner therefore has no legal right to access their property and indeed, could be prevented from using the road by the owner of the road. A land locked property is worth considerably less than a property that is easily accessed.
Another fairly common example, is where the property has not been granted an easement for services being the right to pass water or soil or other services through neighbouring land. In the absence of such an easement the owner of the land through with the services pass would be able to stop the services running or make a charge for the privilege of having the services passing through their land.
Where the property is subject to an easement, the existence of an easement may affect the use and therefore the value of the Property. If the neighbour for example, has the benefit of a easement which gives them a right of way through the rear garden of the property, this may be disruptive with neighbours going to and fro. The presence of an easement giving a right of way will also mean that the owner of the Property cannot build on that part of their land which is subject to the easement, which is a problem if for example the owner wants to extend their property.
How do you know whether there is an easement affecting the land or property?
In the case of registered property the first place to look for an easement is on the title to the property. Where the property has a the benefit of an easement ( is a Dominant Tenement) the easement will be listed in the Property Register of the Title. Where the property is subject to an easement ( is a Servient Tenement) the easement will be listed in the Charges Register.
Where the property is unregistered, there will be reference to the grant of an easement ( right of way etc) or the fact that a right has been reserved over the property ( the land is subject to an easement) will be referred to in the title deeds either in the various conveyances of the land or in separate deeds known as a ‘Deed of Grant of Easement’).
The Conveyancing Process: Dealing with the presence of Easements:
The most effective way to deal with situations where a much needed easement is absent is to approach the owner of the land over which the easement is needed and draw up a Deed of Grant of Easement.
The downside to drawing up a Deed is that you have to be able to ascertain who the owner of the land is and get them to agree to grant of the easement over their land. Once agreement is reached the owner of the land over which the easement is required, is likely to charge a fee and get the applicant to pay all their costs. Drawing up a Deed of Grant of Easement can therefore be a long drawn out process whilst negotiations as to terms take place and can end up being expensive.
The more cost effective and commonly used method of dealing with a situation where there isn’t a required easement is to use indemnity insurance. Under a policy of indemnity insurance the insurer will cover the property owner against any legal costs involved in should the property owner face legal action over the exercise of the right of way and also any diminution in the value of their property.
Dealing with the presence of an easement reserved over the property may be more complex as interference with the exercise of a valid easement may result in Court action.
The owner of the property which is subject to an easement (the Servient Tenement) may negotiate with the owner of the property which has the benefit of the easement (the Dominant Tenement) to have their land released from the easement, this being a Deed of Release of Easement or Deed of Release. Again there is a question of costs, the owner of the Dominant Tenement is likely to charge a fee and seek to recoup their costs.
The writer is not aware of any indemnity insurance that can be obtained to protect a landowner from the financial consequences of interfering with an easement.