An easement is the right for one owner of land to make use of other adjacent or nearby land for the benefit of his land. An easement requires the following features:
- There must be a dominant property which has the benefit of the easement
- There must be a servient property over which the easement is exercised
- The easement must accommodate the dominant property
- The easement must be capable of forming the subject matter of a grant.
The most common easements are a right of way, a right of light and a right of passage of services such as the passage of drains through other property benefitting the dominant land.
Easements can be created in different ways namely by an express conveyance or deed, implied through statute or common law such as when part of a property is sold off where access has previously been exercised over the retained property and by prescription eg where a right of way has been exercised over other land for an uninterrupted period of 20 years nec vi, nec clam, nec precario ie without force, secrecy or permission. Although easements may be adapted to changing times and conditions such as in the case of a right to drive horse carriages over land which may be adapted to the use of cars to be driven over that land the Courts will restrict the extension of the use of an easement if it submits the servient property to an excessive burden.
In a conveyancing transaction it is always important to ensure that the necessary easements benefitting a property are in place and where doubts arise often the solution is to obtain an indemnity insurance to protect the value of the property in the event that an access or a passage of services is interrupted or prevented.
One particular area of concern is when the owner of a property which has an easement benefitting that property acquires additional land to enlarge the property. Case law has established that a right of way over servient property granted for access to the dominant property cannot also be used to gain access to land adjoining the dominant property. A recent case of Gore –v- Naheed and another (2017) has however confirmed that an easement may be used in connection with land outside the dominant property in certain circumstances and depending upon the wording of the easement if it was ancillary to the use of the dominant property.
Sometimes the right to gain access to another property or to the passage of services through that other property falls into disuse and there are circumstances where an easement will be treated as abandoned.
There are many other features of easements which need to be considered to make sure that the necessary rights benefit a property and, if necessary, to safeguard those rights through indemnity insurance.
For further information, please contact Clive Williamson, a Solicitor in the Property department at WBW Solicitors in Exmouth, by telephone on 01395 280385 or by email firstname.lastname@example.org. WBW Solicitors has nine offices across the South West in Newton Abbot, Bovey Tracey, Torquay, Paignton, Exeter, Launceston, Exmouth, Sidmouth and Honiton.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.