Understanding Easements: What You Don’t Know Can Hurt You
If you are planning to buy, sell, let or develop a property in England or Wales, you need to understand easements and how they could affect the property’s intended use.
Easement is a medieval word deriving from the 14th century Old French “aisement”, meaning comfort, convenience, use or enjoyment – no doubt wishful thinking in those dark days of plague and peasant uprisings. The term’s more modern meaning, as a legal right over something that is not yours, emerged not long after and has been the source of property disputes ever since.
Part of the difficulty lies in an easement’s split personality: it can only ever exist between two pieces of land. The “dominant” land has the benefit of an easement while the servient one suffers the burden. The benefit could be a right to take a shortcut through your neighbour’s garden; the burden could be not doing a loft conversion if it would block the light to your neighbour’s sitting room. Whether you benefit or are burdened depends on which side of the boundary you are, or will be, on.
Easements can be created to solve a particular problem. Where a property fronts a road, for example, and the rear of the property is being sold, a buyer is likely to want the seller to grant them a right of way so that the buyer (and future owners) can access the road. On the other hand, where the front is sold, the seller will want to reserve a right of access for themselves. These are examples of intentional, or “express”, easements.
The situation is not always so clear. Easements can hide in plain sight and appear suddenly, and rather unhelpfully, after completion. One way this can happen is by prescription. If a property owner uses a neighbour’s land in a particular way, such as by parking in their field or taking that shortcut through their garden; and they do this openly for an extended period of time without the neighbour giving permission or objecting, the law may assume that an easement exists.
If you find yourself faced with such an easement, the dominant landowner may be willing to release you from your burden, if the price is right. Alive to this potentially lucrative bargaining chip, some sellers will retain a sliver of land, aptly named a ransom strip, when selling off a larger plot. The existence of a ransom strip can prevent a landowner’s access to a main road and effectively block development of the site.
In England and Wales, the onus is on buyers to learn everything they want or need to know about a property before committing to a purchase. For this reason, would-be buyers should thoroughly investigate at an early stage the existence of easements and other issues that could negatively affect the property’s use, condition or value. Sellers should be equally inquisitive about their own property: to be sitting on a valuable easement and not know about it is an opportunity lost.
If you are buying, selling or developing land that may be subject to easements or other restrictions, there is no substitute for good legal advice from someone with knowledge and experience of your particular circumstances. Be clear about your intentions: the more information you can share with your advisor about your situation and proposed plans, the better placed she will be to provide practical, commercially sensible advice.
An easement can be a blessing or a medieval curse. Don’t leave it up to chance.
A version of this article originally appeared in Prime Resi
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For more information on easements or other issues related to land development please contact Morgan Wolfe on 01895 207915 or email firstname.lastname@example.org.
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