Our Experts Discusses Easements

Thompson Smith and Puxon (TSP) discusses easements and how getting them right now might save time and money in the future.

Most land and properties have the benefit of and are subject to easements. An easement is defined as a right to use or access another person’s property without having ownership of it.  In the majority of cases easements cause no problems to the properties that are affected by them and many landowners will be aware of them. However, disagreements can occur and when they do they can be problematic. As with any property dispute they can have a negative effect on the value of a property and deter potential buyers.

Some common examples of easements:

• Rights of way, for vehicles, animals or pedestrians
• The right to use a shared septic tank on a neighbour’s land
• The right for pipes, drains and cables to run over and under another’s  property to allow the supply of gas, electricity, water and other services
• The right for access for maintenance of boundary walls or buildings
• Rights for light and air to buildings

The biggest trigger for a dispute is when one landowner wants to change the use of their land, for example, redevelopment of farmland to housing. Unless the other party co-operates it can be difficult or impossible to change the nature of an existing easement and even if they will assist it is likely to be very expensive to release a right of way, in favour of your neighbour, that could be preventing proposed development.

To try and avoid difficulties in the future, when contemplating the sale of any parcel of land, even if it is a family arrangement or only a relatively small area, always consider what may happen, even if it seems a remote possibility now. Give some detailed thought now to what may happen if the land is sold to someone else or is redeveloped.

Any easements to be granted to the Buyer or reserved for the benefit of the Seller should be drafted clearly. Limit their description to what is needed and avoid general wide sweeping definitions which might be open to interpretation in future years. In the case of Wood v Waddington a property was sold in several parts and each transfer gave each part of the property the “benefit all liberties privileges and advantages …enjoyed by or over the property”  A subsequent buyer Mr and Mrs Woods claimed rights of way on horses over various tracks on Mr Waddington’s land and the ensuing dispute eventually ended up being heard in the Court of Appeal who decided that historic use of the tracks once a month was enough to amount to a right of way.

Always ask your land agent to prepare accurate plans and define the relevant route. This might cost you more money now but the clarity a good plan provides could save a lot of time and trouble later. Wherever possible also include the ability to vary, often referred to as “lift and shift” provisions.