Easements – What are they, and how might they impact on my proposed development?
Senior associate Joseph Preisner looks at the rights which can benefit and burden property and explains why more than a superficial examination is required to uncover their true extent.
An easement is a right for the benefitting land to use the burdened land for a particular purpose. An examination of the title of a property, and an inspection, are required to confirm that a property benefits from all the rights that it needs but is not subject to any easements which may adversely impact on the buyer’s intended use of the property. The commonest easements are for access, and for drainage or other services to pass. Parking rights are also becoming a lively topic.
An easement can only be used to the extent, for the purpose and in the manner of use for which it is granted and is subject to any specified limitations on its use. The detail is important.
Easements that benefit
If a property is made up of several parcels of land, but only one of the parcels benefits from a right of way, then you cannot lawfully use the right to way to access those additional parcels to which the right was not granted. This is the case, even if you intend to pass through the benefitting land to access the other parcels. This is obviously an issue if that right of way is the only access to the property. Title insurance may be required to cover the lack of access rights, or it may also be possible to negotiate a new right for the benefit of the whole of the property with the owner of the burdened land (at a price) – but you cannot do both.
Where an easement is acquired by prescription (ie long use), it is limited to the particular use that established the right – e.g. a gained right of way used on foot only will not allow vehicular traffic.
Where an easement is expressly granted then the ability to change or intensify use depends on the terms of the original grant, taking into account both the wording of the grant and the relevant circumstances. The parameters may be express (e.g. by a description of the use for agricultural machinery) or implied (e.g. by identifying the dimensions of a right of way thereby limiting the type of vehicle that can use it, or the capacity of a drain).
Easements that burden
On the flip side, when considering easements which burden your property, do not assume that their route can be altered or restricted to make way for proposed new buildings. Unless the original grant allowed for ‘lift and shift’, or the restriction or extinguishment of rights, then alterations are unlikely to be permitted. This can be problematic where general, rather than specific, rights exist so that, for example, the property is described as being burdened by whatever rights may have existed at the point in time when it was separated from the adjoining land. In this situation a specialist survey may be required to ascertain whether there are actually any facilities (e.g. pipes or wires) capable of benefiting the adjoining land.
In some limited circumstances easements can be defeated if they can be shown to have been abandoned, or if the burdened land and benefitted land have at some time after grant been in the same ownership. Look carefully for any historic releases of the easements. Alternatively, title insurance may be needed to cover the risk of a claim should you need to alter the route of any rights.
If you are buying property, particularly if you intend to develop it, you need to be aware of any rights that benefit and burden it. You should start by considering the following questions:
- What are you planning to do with the property?
- What rights do you need, do these already exist and are they extensive enough?
- Does any surrounding land have the benefit of any rights which may prevent you from doing what you want?
- Does your inspection of the property reveal any rights being exercised (look out for gates and worn foot-trails) that are not reflected in the title to the property?
You also need a good lawyer to work with you in answering these questions!