A Guide To Understanding Easements

This guide will assist you in the communication and understanding of Easements between all involved parties, whether client, buyer, or seller.

This guide will cover the following sub-topics:

• What is an Easement?
• Why are Easements important to the buyer?
• Where do you find Easements?
• Types of Easements and how they are created?
• Can an Easement be ended?
• Using Easement insurance – a case study
• CLS Property Insight Easement Policies

What is an Easement?

An Easement provides a landowner the right to use the land of another person in a certain or particular way, most commonly created to provide access over the land. They can also be made to grant access to lay and use services such as gas, water, and electricity.

They can also prevent the land from being used in certain ways. A good example of an Easement preventing you from doing something would be a right of light. This Easement can frequently be expressed to stop any new building or construction should it deny daylight through the windows of buildings already constructed.

For an easement to exist, the right must affect two different plots of land (‘tenements’). The land which enjoys the benefit of the easement is called the ‘dominant tenement’ and the land that carries the burden of the easement is called the ‘servient tenement’. The person seeking to claim an easement must own the dominant tenement that benefits from the easement and the easement must benefit the land itself and not purely confer a personal benefit for the owner of the land.

Easements can have many different levels of restrictions and rights attached to them. Considering how properties have been developed over the years, it comes as no surprise that Easements are fairly common in modern-day conveyancing.

Why are Easements important to the buyer?

It is a fair assumption that most home buyers will have never heard of an Easement until informed by a conveyancer. Inevitably it’s likely they will have an opinion or concern regarding the practicalities of having, or giving, access to someone else over the property.

Homebuyers will want to know whether the land or property they are purchasing benefits from any Easements over adjoining land, as it could affect their plans for how they want to use the land. An example of this would be a right of way over adjoining land so that it is possible to leave or gain access to the property they are buying. It might be for pedestrian or vehicular access or simply a means to take out their bins for collection.

A buyer may also be interested in what Easements have been granted to adjoining landowners that may or may not affect how they use or develop their property in the future. For instance, a right of way or right to light could be an obstruction to the buyer’s potential plans to develop the land, and therefore make it unsuitable for purchase.

Where do you find Easements?

The first step is to make enquiries with the seller to ascertain if there are any Easements present or known. The existence of such Easements may be checked either from the title deeds in unregistered title (usually within a Schedule to a Conveyance, or a Transfer, or expressly granted in a separate Deed of Grant) or the register in registered title (easements granted for the benefit of the property will be found in the Property Register and easements reserved over the property, for the benefit of others, will generally be found in the Charges Register). However, this action may not always be conclusive and sometimes no Easement records can be found. In these cases, when there is no written evidence of Easements in the deeds or Register, but there are still legal Easements required, and insurance can be taken out to ensure the protection of the buyer.

Types of Easements and how they are created

There are various types of Easements:

 Express Grant or Reservation

This is an Easement that will typically be set out in the deed transferring the land from the seller to buyer. Most Easements will be created when the seller is selling part of the land to the buyer (either in a TP1 or an original Transfer). If for instance, the seller is selling part of the land without access to a road, they will need to grant an Easement to the buyer so that the buyer can cross the land the seller keeps, essentially a permission slip. Likewise, if the seller is selling land over which they access the road, they may need to reserve the right to cross the land that the buyer will own, so that they can reach the road.

Implied Easement

The clue here lies within the title with ‘implied’ meaning something that is suggested but not directly expressed. These may be created where part of the land is being sold and the parties have not granted the Easements expressly.

 Prescriptive Easements

An Easement can be created by prescription, where long continuous use of the right can be shown. Under the Prescription Act 1932, the period of uninterrupted use must be twenty years. Sometimes property owners have used rights via right of way over neighbouring land for many years but are surprised to find that these rights are not on the land registry title. This could cause problems and delays when the property comes to be mortgaged or sold, or if the landowner challenges use of these rights.

For a right to be acquired through prescription, the following conditions must be met:

• The rights must have been exercised without interruption for at least twenty years immediately prior to the date of the claim.
• Use by previous owners can be included in this twenty-year period, provided that there is clear evidence of such use, for instance a formal statutory declaration made by the previous owners.
• The right must have been used in the same way throughout the whole twenty-year period.
• The right must have been exercised “as of right” so not by force, for instance breaking down fences by stealth or with neighbour’s consent. The use of right cannot be with the neighbour’s consent. This is because it is akin to the procedure for claiming title by adverse possession, otherwise known as squatter’s rights. If the neighbour is willing to give permission for the rights to be exercised over his land, this should be documented. If a neighbour has given permission, it falls out of prescriptive Easements and requires a specific grant of Easements in the deeds.

What kind of rights can be claimed through long user?

• Rights of way.
• Rights to use drains, pipes or other services in adjoining land.
• Rights of support (from adjoining properties); for instance, you cannot move or remove something that may compromise the structural integrity of something sitting next to it.
• Rights of light, for instance the right to receive light through existing windows in a property.
• It is a general rule that a landowner cannot acquire a right to do something that is prohibited by law, for example, this could include as to whether a vehicular right of way can be acquired over a public footpath or a private path.
• Parking rights. It used to be thought that a right to park on neighbouring land could not be acquired through long use rights, but it has now been held that this is possible depending on the particular circumstances. This was a frequent issue for conveyancers and estate agents alike. As these parking rights were normally assumed or implied, they were the most common cause of delayed exchanges. Some Easements may be allowed for a car but in these modern times, most households can have multiple vehicles, which can be problematic.
• As far as tenants are concerned, a tenant cannot claim rights against his landlord unless they are expressly set out in the lease. The exception to this tenant can acquire rights of light depending on the wording in the lease.
• Some rights are considered too vague to be acquired through long use. For example, it is not possible to acquire rights for TV reception in this way. Similarly, there can be no right for an attractive view not to be obstructed.

Can an Easement be ended?

The simple answer to that is, yes, the Easement could be brought to an end in one of the following three ways:

1. The dominant and servient land (tenements) are reunited through purchase, to become one again with one owner.
2. The owner of the dominant land with the benefit of the Easement, releases the Easement in (by) a deed.
3. There is an implied release by abandonment – if there is an implied release because the owner of the dominant land has not used the Easement for a lengthy period, for example, twenty years.

Using Easement Insurance – A case study

The Issue:

The insured was a freehold owner of a formal Local Authority-owned mid-terrace property in the Midlands. The insured took out one of our standard online Absence of Easement policies in 2012 as she did not have a documented right to cross the neighbour’s garden to access the property.

 The access way had been used uninterrupted since the late 1970s, long before the insurer purchased the property. The neighbouring property was still owned by the Local Authority in 2012, and the same Local Authority had permitted the use of the access way by the uninsured, but it was not registered to the deeds of the insured property upon its sale.

The neighbouring property was purchased from the Local Authority by its tenants who decided in January 2015 to construct a rear extension. In this case, it was a conservatory which would be built over the access way. The insured informed CLS as soon as they were told by the neighbour of the imminent start of the build. The insured highlighted the urgency of the situation.

The Action:

CLS responded by instructing one of the company’s panel solicitors to contact the insured’s neighbours immediately. The solicited letter highlighted the insured’s rights and highlighted that infringements on those rights could result in the insured seeking an injunction.

The insured’s position was not a strong one and the neighbour was well informed as to their rights in these situations. After some initial to-ing and fro-ing, the extension to the neighbour’s property was completed. Negotiations continued with the owners to prove there was a genuine right of way, which proved very difficult with the evidence – or lack of it in this case.

Without prejudice, offers were made to attempt to establish a new documented Easement, however these were also rejected.

The Solution:

At this point, CLS looked to quantify the insured’s loss by seeking to get a valuation of the insured property with and without the use of the access way. A surveyor was instructed at the insurer’s expense. The valuation came back with a differential £7,500 between the two valuations, which was offered by way of settlement to the insured. This offer was accepted and paid out in full to the insured in full and final settlement of the policy.

The Outcome:

The policy came to the defence of the insured and challenged a third party that infringed their rights. When an Easement could not be established due to the unwillingness of the neighbour, the loss was quantified and paid out at a total of £7,500 in damages and circa £9,000 in solicitors and experts fees.

Total pay-outs in this case were £16,500. The policy which protected the buyer in this instance had cost under £100. This case example demonstrates the level of work and commitment that CLS put into every case and also the value of working with an insurance provider that provides clear and precise policies with no hidden clauses and exceptions.

CLS Property Easement Insight Policies:

CLS Property Insights are pleased to be able to offer a full range of online policies that could protect your buyers from financial loss due to Easement issues. Some of the policies are specific to providing cover for Easements and other multiple risks. There is a degree of flexibility depending on what risks are identified.

Absence Of Easement (Access):

As the title suggests, this policy protects you should another person prevent you using, maintaining, or repairing an existing defined route of access from the public highway to your property. Or tries to prevent you connected to or using, maintaining or repairing pipes, cables, or other services, which are already connected to and serve your property.

Absence Of Easement (Services):

This policy protects you should another person prevent you from using, maintaining, or repairing pipes, cables or other services, which are already connected to conserve your property.

Missing Information (Unknown rights, Easements and covenants):

This policy protects you if another person attempts to enforce or enforces restrictive covenants, which affect your property. In addition to this, the policy protects you, should another person attempt to exercise rights or Easements over your property, such as the right of access or the right to use services.

Possessory Title (including unknown rights, Easements and covenants):

This policy protects you against another person looking to challenge the ownership of your property because part or all of it is registered with possessory title. This policy also protects you if another person attempts to enforce or enforces restrictive covenants, rights, or Easements, which affect your property.

For any further information about Easements, or for any queries relating to this subject matter, please don’t hesitate to contact us.

 

This article was submitted to be published by CLS Property Insight as part of their advertising agreement with Today’s Conveyancer. The views expressed in this article are those of the submitter and not those of Today’s Conveyancer.