Easement is a legal term for one person's right over another person's land. A right of way describes an easement that allows you to walk over another person's land.
Easements might include the right to walk across someone else's land, the right to park, the right to graze animals, or the right to moor a boat.
How are easements created?
This is a complicated area of law, and there are several ways to create an easement. The two most common ways are expressly in a deed of easement or through long use for a period of more than 20 years.
Express deeds of easement
There are many situations where an express right might be given to one person to allow them access over another parcel of land they do not own. Think of a situation, for example, where a house builder owns a large plot of land and intends to build a number of houses on it. The house builder might retain ownership of the road, which gives access to each of the houses. The house builder would, at the time that they sell the individual houses, give the new homeowners an express right of way, recorded in a deed, allowing the new homeowner to drive over the road which the house builder owns.
It is essential to note that in order for there to be an easement, you have to have what is called in legal terms, a servient parcel of land and a dominant parcel of land and those parcels cannot be owned by the same person.
In the example above, the servient land is the road owned by the house builder, and the dominant land is the individual houses. The houses benefit from the right to use the road and the housebuilder's road is burdened by the right in favour of the new homeowners.
If an express grant of easement is in a deed, it needs to be registered at the HM Land Registry so that it is apparent to anyone looking at the title for the individual houses or road referred to in the example above that there is an easement in place. If the express easement is not registered, it may not bind the parties in law.
In some circumstances the grant of easement might be implied where the grantor (the party that owns the land providing the benefit of the right) disposes of part of its land. An easement that might be created by an implied grant is an easement of necessity. For example, an easement of necessity, which is usually a right of way, can arise when there is a disposal of part of a land parcel, and there are no other legally enforceable means of access to the land that is being sold or retained. In some circumstances here, the law steps in to prevent the land disposed of from becoming landlocked and allows an implied easement of necessity to arise.
The other very common way easements can come into existence is based on long use. In legal terms, this is known as acquiring rights by prescription. In very general terms, if a party has, for example, walked over another party's land for a period of over 20 years, without force, without permission from the neighbouring land owner, and without it being a secret, then after 20 years, that person may be able to apply to register their ongoing rights to walk across the land based on long use.
What is a right of way easement dispute?
Even in cases where parties have express rights of way set out in a written deed, right of way disputes can arise. Disputes commonly arise when houses change hands, and a new owner may not want the neighbour to continue to exercise a right even though they have the right to do so in a deed.
Disputes regarding long-use or prescriptive easements are also common because those rights are not recorded on the title at HM Land Registry. Again, if a parcel of land is sold and a new owner comes onto the scene, they may take issue with one of the neighbours walking across their land, for example, even though the neighbour has done that for several decades.
How do you stop a neighbour from abusing a right of way?
First, you need to understand whether the neighbour is exercising that right of way based on express written rights or whether they are doing so because they have always done so for a number of years. You must take legal advice before entering into a dispute with your neighbour.
It may be the case that the neighbour has an express right of way but is doing something that is in excess of the terms of their right. For example, it is common for a right of way to allow access at all times for all reasonable purposes associated with a house, but the neighbour might start to run a business from their home and have huge deliveries regularly arriving in large lorries, and that might be outside the terms of their right.
Using another example, a person might have a right to park a car on your land and then start to abuse that right by permanently parking a lorry in the space.
Therefore, it is important to understand whether what the neighbour is doing breaches the terms of any express right or is within the terms of that right.
If you suspect that the neighbour has no express right of way over your land, then it is important to understand the basis upon which they are, for example, walking over your land, how long they have done so, and the circumstances so that you can take legal advice as to whether or not they have, in fact, acquired a prescriptive easement.
How do I know if my property is burdened by an easement?
First, you should look at your title document registered at HM Land Registry and the title documents if they are available for the neighbouring property. If the neighbour has an express right, then that should be recorded on both of the property titles, although it should be noted that it may only be referenced on one of the titles and not necessarily both.
It is rare these days for an express easement not to be registered on the title, but in some rare cases, it could be that there is an express deed giving a right that has not been registered.
If the neighbour is exercising a right based on long use, that right is unlikely to be registered, and therefore, the only way to know about the existence of those rights would be to engage with your neighbour and find out how long they have been exercising those rights.
What happens if you breach an easement?
If you have a right which is set out in a deed of easement, then you need to properly understand the extent of the right, what you are permitted to do and how limited the right may be. If, for example, you have the benefit of an easement that allows you to drive over a neighbour's land to reach your own land, and you start parking on the neighbour's land, then that would breach the terms of the easement and the neighbour would be able to take action against you for breach of contract or trespass.
If you are the owner of the burdened land, you also need to ensure you do not interfere with any right that the neighbouring party has. For example, if the neighbour has the right to drive across your land to reach their own land, it would not be permissible for you to take steps that substantially interfere with that right of way. It may be an actionable interference if you were to put a gate across your land that makes it much more difficult for the neighbour to exercise that right of way. If you do take steps that mean that there is a substantial interference with another party's right, then they would have the right to ask the court to order you to remove the physical impediment and potentially also pay damages and their costs.
Do easements affect property value?
This really does depend on the extent of the right that a third party has, but in general terms, unless the right substantially hinders a reasonable use of the burdened land, an easement does not adversely affect a property's value.
Can an easement be removed?
Removing an easement is not always straightforward. There are some scenarios in which an easement will come to an end and one of those is where the parcel of land with the benefit of the right and the parcel of land that is burdened by the right come into common ownership i.e. they are owned by the same person.
Another way to end an easement is to reach an agreement with the other party and enter into an express deed of release. That deed of release should then be lodged with the Land Registry, which will remove the reference to the right from both parties' titles.
In very limited circumstances, it may be possible to argue that an easement has been abandoned if it has not been exercised for a significant length of time. However, to succeed with this argument, you also have to show that the owner of the land, with the benefit of the easement, had a fixed intention never, at any time in the future, to assert the rights or attempt to transfer it to someone else. In reality, this can be a very difficult thing to establish.
The fact that an easement has not been exercised for a very long time is not of itself sufficient to show that it has been abandoned.
How do I resolve an easement dispute?
First, you must understand whether the party is exercising a right under a deed or whether it is through long use. You then need to understand if a party has an express right of way, the extent of that right and whether that is being abused or complied with.
You should take early legal advice to understand your legal position and employ a solicitor to guide you through the means of resolving a dispute which will include reaching out to the neighbour and trying to meet to discuss matters on a without prejudice basis, using a mediator to facilitate a settlement or in the worst case scenario, issuing court proceedings.
