Easements and rights of way
Sometimes it is necessary to access or use part of someone else’s land, for example by crossing it to reach another property or having infrastructure such as pipes or wires running through it. Permission for this sort of use is known as an easement. It is usually agreed upon at the time a property is constructed, but if it is not properly documented or changes are needed, disagreements can arise.
What is an easement?
An easement is a legal right to use or cross land for some necessary purpose, such as accessing adjoining property or the laying or maintaining of electricity and gas supplies, water and drainage pipes or communication fibres.
An easement could have conditions attached to it, preventing a property owner from doing something which might impact their neighbour, such as constructing a building close to a boundary.
Acquiring an easement
Easements are often drawn up at the time a property is constructed and the details are usually held with the title deeds. These are known as express easements.
However, it is possible, in some circumstances, for an easement to exist without being in a formal written document, for example, if part of a parcel of land has been sold and the only means of access is across the unsold or retained land.
An easement may also arise simply because it has been in use for more than 20 years. There are certain criteria which must be met, including that the easement was exercised without force or stealth or permission. This is known as a prescriptive easement and can be registered at HM Land Registry, provided the necessary evidence can be shown.
If you are planning on building a home and will need access over someone else’s land you should always obtain their consent before beginning work. It is important that an easement is correctly drafted and registered so that disagreements can be avoided in the future.
Ending an easement
To end an easement you would usually need to come to an agreement with the other party and both enter into a deed revoking it. Alternatively, iIf you can show that the easement has not been used for 20 years you might be able to end it unilaterally.
Rights of way
A right of way is a particular type of easement allowing someone to cross your land to access their property. The document granting the right may specify whether access is allowed on foot or also in a vehicle.
If you wish to alter a right of way, you will have to come to an agreement with the other party. Blocking or interfering with the access is not permitted and legal action could be taken if someone tries to do this. It might be possible to put in a gate, provided reasonable access is still possible. If you wish to change a right of way you should seek legal advice before taking action to ensure that you do not expose yourself to the risk of court action.
If you agree upon a right of way with your neighbour allowing you to cross their property, you should have a legally binding agreement drawn up and registered with HM Land Registry to protect this right for the future.
Disputes over easements
Disputes regularly arise over rights of way. A court case can be a lengthy and expensive solution, so, if possible, it is always advisable to reach an amicable agreement without the need for legal proceedings.
Lincoln & Rowe are experienced in alternative dispute resolution, helping clients to find a result that they are happy with and ensuring that any agreement is put into a legally binding document and registered with HM Land Registry.
This is always preferable to a protracted legal battle, which can cause lasting resentment between neighbours and may not produce the desired result. If you would like to discuss any issues you may be having in respect of easements or rights of way, we would be happy to hear from you. Our property expert and partner James Beat has been specialising in resolving complex property cases for over 15 years.
Who we can help
Our property litigation solicitors at Lincoln & Rowe have two decades of experience advising on high-value and complex property litigation. We advise on a wide range of commercial and residential property litigation matters and contentious property issues, including trust and probate disputes where property is involved.
Where can you find us?
Lincoln & Rowe Solicitors are based in the heart of London and just a few minutes’ walk from the Royal Courts of Justice. Our full address is 81 Chancery Lane, London WC2A 1DD.
Make an online enquiry, send an email to enquiries@lincolnandrowe.com or call us on +44 (0)20 3968 6030.
