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You shall not pass!

Reasons to choose Wilson Browne

In this instance, not a reference to Gandalf from Lord Of The Rings but a reference to ‘easements’ which often cover access rights amongst other things.

OR:

Your right…to a right of way

“My neighbour says I don’t have the right to use their driveway to access my property! What can I do?”

Are they right? This depends on many factors but the first step is to see whether you have a legal right to do so (an easement).

Easements are not very exciting, but are really important – whether you have the easements you need will affect your future enjoyment of a property (neighbour disputes are not nice) and can affect the value and future saleability if they are inadequate.

What are they?

An easement basically gives one landowner a right to use the land of another in some way, or prevent it being used in a certain way. Common easements are:

• Rights of way;
• Rights of light;
• Rights of support;
• Rights for drainage;
• Access for repairs;
• A right to park

An easement can only come into existence in certain ways, amongst other things:

• There must be two separate parcels of land;
• The right must benefit the “dominant” land in some way (dominant land is the land that benefits from the right);
• The parcels of land must be owned and occupied by different people.

Ideally the required easements will be created when there is a sale of part of land. For example A may wish to sell part of his garden to B to enable B to build a house. A is keeping (retaining) land. The only access to the B’s land from the highway is across the land A is retaining. As such A will need to grant to B a “right of access” in the transfer to B.

The drains serving A’s retained land cross the land that is to be sold to B. As such, A will need to ensure they have a right in the transfer to continue to use the drain once the land has been sold to B.

In this example the easements are said to be “expressly granted”, and as they have been granted in the transfer (a deed), they will become “legal easements”.

Legal easements will be noted on the titles of both properties so anyone purchasing either property in the future, will be fully aware of easements that benefit and burden the properties.

This is the ideal situation but not everything is as straightforward. What if you need the right but it is not there?

Don’t worry, easements can also be created by statue, implied or acquired by prescription.

They could be implied if, in error, the parties fail to include the necessary easements in the transfer. However, they will only be implied in limited circumstances such as necessity, a common intention (what did the parties intend at the time) or relying on previous case law. Satisfying the criteria can be difficult so its best to deal with them expressly where possible.

An easement may be granted by “prescription” – presumed to have been granted if a long and continuous use of 20 years or more can be shown, again subject to satisfying various criteria.

You are buying a home, what should you do?

Think about how you access the property, how services (gas/electricity etc) reach the property, does the neighbouring land support yours in some way?

Checking a property has the necessary rights and reservations is an integral part of the conveyancing process. Given conveyancers do not generally visit properties, you should check the practical position against the legal report your conveyancer provides you with. Make sure you alert them to anything you suspect is not covered – for example an access road which clearly serves the property but is not detailed in the report or the title documents.

Whilst they are not very exciting, easements are really significant and you should be fully aware of how a property is affected before committing to your purchase.

For further help and advice contact us on 0800 088 6004.

Jenny Woodruff

Posted:

Jenny Woodruff

Partner

Jenny is a Partner and head of the Residential Conveyancing Team. She has extensive knowledge of the conveyancing process, including: dealing with freehold and leasehold sales & purchases; new build purchases; remortgages; transfers of equity; shared ownership; help to buy transactions & general property advice.