Commercial development and biodiversity net gain
Easements are valuable rights that allow you to use neighbouring land in particular ways, for the benefit of your own property. Without easements, like a right of way or the right to light, you might not be able to make full use of your property, so they really matter especially when you are operating a business.
The law on easements has developed over many years and can be complex. An expert solicitor will be able to explain exactly what your easement allows you to do and what action you can take if a neighbouring landowner tries to stop you.
‘Clients sometimes ask why rights are granted as easements instead of by a simple licence agreement,’ says Alex Fenegan, partner in the commercial property team. ‘The answer is that once you have a properly granted easement, you can still enforce it even if your neighbour sells their land to someone else.’
Essential characteristics of an easement
The key point about an easement, Alex continues, is that it relates to land rather than being a permission granted to you personally, as the current occupier. This is why easements can pass with land when it is sold. There must be land that benefits from the easement and neighbouring land over which the easement is exercised and these must be owned by different people. There is a legal trap here, because if you have a right of way over neighbouring land and you later buy that land yourself, the right of way will be extinguished and will not revive, even if you later sell the land to someone else. This is something to look out for if you are buying land which you plan to develop and then sell on again in separate plots.
Scope and extent
It is vital that you are clear about what your easement allows you to do, and over which parts of your neighbour’s land; and your solicitor can help you understand this. It is easiest where your easement was granted in a written document, because that will usually set out exactly what is permitted and show the relevant part of your neighbour’s land on a plan. For example, a right of way might be described as a right to ‘pass and repass at all times and for all purposes with or without vehicles over the roadway coloured red on the plan attached’. That wording is wide, shows that there are no time restrictions and that the right of way can be used on foot and in vehicles.
You should be aware that not all easements are drafted so clearly, which is where disputes can arise, but your solicitor should be able to advise you.
One common issue is what happens if you change the way you use the easement, particularly if you change the way you are using your land. If that means a very different use of the easement from what your neighbour had in mind when it was granted, for example if you have built several logistics warehouses on an empty field, a court may decide that your use goes beyond what the easement allows.
If you plan to rely on a historic easement to get access to a site you are developing, make sure you get your solicitor involved as early as you can.
Is the easement still enforceable?
Your easement should still be enforceable even if your neighbour’s land has changed hands. Depending on when and how the easement was granted, your easement may have been registered at HM Land Registry. The rules about this are complicated, but your solicitor will be able to check the position and advise you.
Repairs and maintenance
If you have a right of way over a private road, you will want to make sure it is kept in good repair. A well-drafted deed of easement should set out who is responsible for repairs and how the cost is to be shared. If there is no clear agreement about this, neither you nor your neighbour is obliged to repair.
As the owner of the land with the benefit of the easement, you have a right to repair the road but you may have to bear the cost yourself. This is another complex area and, to make sure you do not get into a dispute, you must get advice from your solicitor before you go onto your neighbour’s land to carry out repairs.
Interference with your easement
Another common cause of disputes is what happens if your neighbour does something that you believe is interfering with your easement, such as putting a locked gate across a right of way or altering a building in a way that blocks light to a building on your land.
You may be able to take action to stop the interference, but only if it is so substantial that you can no longer use your easement as conveniently as before. This will depend on the precise facts of the situation but there are useful examples in previous court decisions. For example, a single gate across a right of way probably does not count as a substantial interference, as long as you have a key to any locks. In contrast, if your neighbour installs several gates on a fairly short road, that might be seen as substantial. If your neighbour develops their land and reduces the width of a right of way or the size of a turning circle over which you have an easement, you may be able to claim substantial interference, especially if the extent of your rights was shown clearly on a plan when the easement was granted.
In any potential dispute, the sooner you get advice from your solicitor the better, because swift action can often resolve problems before they escalate. If you are not able to reach agreement and you decide to go to court, you may get a declaration that your right is being interfered with or an injunction to stop your neighbour doing something or to require them to take specific action, and possibly damages. Your solicitor will be able to advise you about what you can reasonably expect.
How we can help
Disputes with your neighbours are always best avoided and easements can be fertile ground for them. Our expert commercial property lawyers can help you understand what rights your easement gives you and what you can do to resolve problems as soon as they arise.
For further information, please contact Alex Fenegan in the commercial property team on 020 7400 1558 or email alex.fenegan@bracherrawlins.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
Related posts
