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“Easements are rights over other people’s land, and it’s not surprising that landowners often challenge the nature and extent of an easement or even its very existence.What is an easement?
An easement is a person’s right to use another person’s land in some way. We often associate the term ‘easement’ with a right of way on foot or in a vehicle. However, easements exist in a variety of forms, and common ones include:
- Easements for drainage, water and gas pipes, electricity and telephone cables, and other service media passing under or over land.
- Rights of Light.
- Rights of access for maintenance.
How are easements created?
A person or body acquires an easement in one of three ways:
- express grant;
- implication;
- prescription (long use).
Express grant easements
An express grant is where a person sells part of their land but wishes to retain rights over it. Alternatively, the sold land needs rights created over the retained land. They achieve this by stating those rights expressly in a deed.
Implied easements
Like an express grant, implied easements usually arise when people sell part of their land. But unlike an express grant, there is no need to specify the easement in a deed. A classic example occurs when the only access to the seller’s retained land is over the land sold. As you would expect, it’s necessary to prove the existence of implied easements.
Another term for an implied easement is an ‘easement of necessity’.
Prescriptive easements
A person acquires a prescriptive easement by evidence of exercising the right for at least 20 years. Throughout that time, the person claiming the easement must have enjoyed the right ‘without force, without secrecy, and without permission’.
Although the use must be continuous, depending on the nature of the easement claimed, it does not necessarily need to be constant.
In some ways, a prescriptive easement is similar to adverse possession, although prescription relates to the right to use land in a particular way rather than claiming ownership.
Prescriptive easements are often contentious, and the law surrounding them is complex. Should you read around the subject, you will soon encounter a reference to the Prescription Act 1832 and the doctrine of ‘lost modern grant’. But for an introduction to easements, exploring those just muddies the waters. Suffice it to say that the Law Commission has long called for the repeal of the Prescription Act, describing it as “one of the worst drafted Acts on the Statute Book”!
Right of way disputes
Most easement enquiries we receive concern pedestrian or vehicle right of way disputes. Often, the allegation is that a neighbour abuses their right of way. Below are some common scenarios we encounter.
Neighbour blocking shared access path
A common cause of disputes is a right of way blocked by a vehicle, skip, building supplies or another physical obstruction. Of course, this behaviour may simply be inconsiderate. But it can be deliberate if your neighbour refuses to accept your right of way. More permanent barriers such as a fence or locked gate can appear in such cases.
See also: Shared driveway problems
Enlarging a right of way
An interesting scenario involves a neighbour using more of your land than their right of way allows or even a different part of the land entirely. For example, driving larger vehicles along an accessway or diverting from the right of way to ‘cut the corner’.
Of course, as the landowner, it’s crucial to challenge such behaviour. That’s because, irrespective of how the original right of way came into existence, long use can change the nature of the right by prescription.
Right of way access to back garden
A neighbour having the right of way across your garden is common, particularly in older (often terraced) properties. Occasionally, this gives rise to problems if exercising the right has become intrusive or the neighbour deviates from the accepted path. For example, a recent case we encountered involved riding a motorbike along a pedestrian right of way.
Does a right of way expire if not used?
Removing or losing a right of way is difficult, even if unused.
