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An Englishman’s home is his castle
In a much-quoted decision in 1604, the famous judge, Sir Edward Coke, declared that “The house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose,” from which originated the phrase “An Englishman’s home is his castle.”
Whether it’s a great estate or a modest garden, we have always looked to protect our land from intruders. But not everyone who breaches your defences is a trespasser. For example, some people – often because of their job – have your implied permission to be there, e.g. the postman and other delivery people. And in the same way, it wouldn’t cross your mind to ask permission before entering a shop.
However, there may be people who, as the result of an ‘easement’, have a right to enter or use your land, even against your wishes.
What is an easement?
An easement is the legal right of one landowner (the dominant land) to use another person’s land (the servient land) for a specified purpose. And while we tend to associate the term with a private right of way, it extends to various uses. Common ones include:
- A private right of way to pass across privately owned land or along a privately owned road or track.
- Out of necessity, pipes and cables belonging to utility companies run under (and occasionally over) private property. Usually, the landowner receives a one-off payment on installation. However, the utility company has permanent access for service and maintenance upon giving reasonable notice.
- An older right still encountered is the right to draw water from a spring or watercourse on neighbouring land.
- A more modern easement is the right to park a car within a defined area on neighbouring land.
- Rights of Light is an easement giving one property owner the right to enjoy the light passing over neighbouring land. But the right only extends to light passing through ‘defined apertures’ in their building, typically windows.
It’s important to note that an easement is binding on all current and future landowners.
How are easements created?
Easements are created in one of three ways:
- An express grant occurs when a landowner sells part of their property but retains some rights over the land sold. Often, this is a private right of way, but on new housing developments, it’s likely to include the ability to maintain utilities.
- An easement by prescription occurs when a person has been using land openly in a certain way for more than 20 years. Their use of the land must be “continuous”, and must be “as of right”, meaning that it must be “without force”, “without secrecy”, and “without permission”.
- An easement implied by law is sometimes created on the sale of land. An example of such an implied grant will be if the only means of accessing the land sold is over the land retained, i.e. an easement of necessity.
Easement vs licence
Put simply, the difference between an easement and a licence is that a licence does not attach to the land. So, it’s not binding on future landowners. For example, if you agree to your neighbour’s request to park their car on your land, you have granted them a licence. The licence is automatically revoked when you sell the land. Your neighbour must then seek a new licence from your purchaser.
How to remove an easement from your property
Discussing how to remove an easement may give the impression that they are always a burden. But although easements are permanent, they operate in the background in most cases, not affecting your enjoyment of your property. However, three scenarios will extinguish an easement:
- Where the dominant and servient land come into common ownership, i.e. acquired by the same person.
- Where the dominant landowner grants an express release by deed to the servient owner.
- An implied release usually occurs by abandonment when the person with the benefit fails to exercise their right for more than 20 years.
How to remove an easement: next steps
Before considering how to remove an easement, always consider the bigger picture. All disputes concerning land have the potential to harm both parties. And that’s particularly so with disputes between neighbours. It’s not only the animosity and the immediate financial cost to consider but also the longer-term implications. That’s because when you come to sell, you must disclose the dispute to a potential purchaser. And that applies even if the dispute has long settled. If you fail to disclose when asked (and they will ask!), your purchaser may sue you for misrepresentation.
There’s little more guaranteed to send your purchaser running for the hills than the prospect of inheriting a troublesome neighbour. Indeed, there’s an old adage that a neighbour dispute never truly resolves until both parties move away.
With this in mind, ensure you know where you stand legally before broaching any issue with a neighbour concerning land. Your approach should also be diplomatic and planned very carefully. Contacting us as soon as possible means we can advise you fully and assist you in moving matters forward.