January 18, 2018

What is an easement? How can an easement impact a proposed development?

Posted in Real Estate

It is no secret that sought-after areas with development potential in the UK are densely populated and that securing land is increasingly difficult with demand outstripping supply. Many “infill” development sites rely on access or services being provided via land owned by third parties. The need to properly check that the development has both sufficient rights for the proposed use and is not adversely affected by easements is critical.

Whilst the existence of an easement benefiting or burdening land may at first seem benign (as is often the case) it is vital that a site is fully investigated at the earliest given opportunity to ensure the full effect is understood and, in particular, prior to incurring significant cost in terms of funding, planning and commercial negotiations.

What is an easement?

An easement is a legal right benefiting a piece of land (known as the “dominant land”) which allows a landowner to use another piece of land (the “servient land”) for a particular purpose.

An easement can be granted by one party to another or it may be reserved by a party for themselves.

Some of the most common easements include, for example:-

  • A right of way, such as the right to pass through another person’s property to gain access to your own land or a public highway;
  • An easement for services, for example, the right to install a pipe beneath another person’s land or the right to maintain electricity and telephone lines connected to your property;
  • A right to light which grants a landowner the right to receive light through defined apertures; or
  • A right of support for your building from other buildings or land.

How are easements created?

Easements may arise in the following ways:-

  • Expressly granted or reserved by deed. For example, when a landowner sells part of their land and wants to reserve rights. If the land is registered then these easements will appear on the title at the Land Registry so can usually be checked easily.
  • Impliedly granted or reserved. An implied easement may arise, for example, on grounds of necessity or a common intention at the time of the sale.
  • By prescription. An easement by prescription may arise when one party has been using the other’s land without permission but in a continuous and open manner for at least 20 years.

It is not unusual for an easement to arise informally and it is therefore imperative that a purchaser fully investigates not just the paper title but the position on the ground.

How can an easement impact a proposed development?

A developer looking to purchase land which is burdened by an easement will want to consider the impact of any such easement on the intended use of the development.

The existence of an easement may mean that a purchaser is not entitled to build on a particular part of the land or even access the land they are buying or hoping to develop.

Outlined below are a couple of examples of matters that Goodman Derrick recently advised on:-

Case Study 1

Our client was purchasing land (“Land A”) with vacant possession with a view to obtaining planning permission to convert the site into a residential development. An easement was registered against the title reserving a right of way in favour of an adjacent piece of land (“Land B”) across Land A to provide access to a loading bay.

The right of way passed directly through the middle of Land A. The owner of Land B was entitled to use the accessway and Land A was subject to that right. There was no express right to terminate or vary the easement and no right to “lift and shift”. Given the proposed development plans, it was immediately flagged as an issue that needed to be carefully considered.

This was a lucky example. The speed with which the problem was addressed provided our client an opportunity to accommodate the right of way in their masterplan design as an internal accessway running through the development via the same route and thereby avoid incurring unnecessary costs and delay in trying to negotiate a variation.

Bear in mind that the same scenario could easily arise with an implied easement but would be less easy to spot. So in our example, if the owner of Land B had used that right of way without permission (but in a continuous and open manner) for at least 20 years, then the easement would not have appeared on the title. The risk is that this then gets overlooked at the due diligence stage and the issue only comes to light much further down the line when it can be much harder (and more expensive!) to deal with. It is imperative to ensure that a purchaser also looks for evidence of easements on the ground, such as rights of way, so that they can be investigated further.

Case Study 2

In another case, our client was purchasing a couple of industrial units (“Land C”) with a view to developing into residential flats. Land C had the benefit of a registered right of way along an accessway to cross a neighbouring car garage (“Land D”) and the right was stated to be for ancillary use to the garage.

This was not such a lucky example. Clearly access to a residential development is not ancillary to the use of a car garage. As such, the easement that Land C relied upon was insufficient to accommodate the proposed change of use.  The accessway was registered which meant that indemnity insurance was not a viable solution.  The only remaining solution was to negotiate with the owner of the accessway to either vary the easement or to buy the accessway.

Excessive Use

In any event, even if the right of way in the above example had specified that it was for “all purposes” and not just ancillary use, a purchaser would still need to consider the scope of the easement and in particular the change of use of the land being contemplated.

Essential easements can be hindered by “excessive use”. An easement cannot be used for a purpose which exceeds the right for which it was initially granted or acquired. Factors to be considered include the purpose, nature and frequency of the new use. If there has been a radical change in the character of the land which has led to a substantial increase or alteration in the burden of the servient land, then the use may be considered excessive. This is a particularly complex area with cases often turning on the facts.

In this scenario, the right of way was initially granted to allow access to a couple of small industrial units. When the new use being contemplated is a residential block of flats, suddenly that right of way is more burdensome than originally intended. Even an express easement, which on first reading seems to have no restriction on the purpose of its use, can still fall foul of the “excessive user” rule.

These case studies illustrate the need to consider the role of easements in any development at the earliest possible opportunity.

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