The Burden of an Easement – Developers Beware!

Post by: Jacqueline Ross 13/02/2020 0 comments 59 views

This blog is designed to provide our commercial clients with an insight into the nature and characteristics of an easement.

Nature of an Easement

An easement is an incorporeal right enjoyed by the owner of a legal estate (dominant tenement) over land in the ownership of another person (servient tenement) that binds successors in title.

Criteria of an Easement (Re Ellensborough Park)

Re Ellensborough Park  in 1955 set out the essential criteria  for granting an easement.

In this case, the titular park area, Ellenborough Park, was a park in Weston-super-Mare which was owned jointly by two tenants.

The park also stood opposite a row of houses. The owners sold parts of the park so that more houses could be built.

Along with the sale, the builders received rights to enjoy the remaining parkland. Specifically, they had the right to “the full enjoyment at all times hereafter in common pleasure of the ground”.

The owners of the houses which had those attached rights applied to have their rights recognised as an easement. This was because some of the parkland was requisitioned by the War Office during World War II and pursuant to the Compensation Defence Act 1939, the people who had property rights in adjacent land were to receive compensation.

The claimants needed their rights to be recognised as an easement as this would grant them the necessary property rights, as opposed to a licence which does not imply such rights.

The court ruled in favour of the claimants, and granted the easement. The court further outlined the criteria for the granting of an easement.

Essential Characteristics

  • There must be a dominant and servient tenement;
  • The easement must accommodate the dominant tenement;
  • The dominant and servient owners must be different persons, and
  • The easement must be capable of forming the subject matter of a grant.

The Creation of an Easement

An easement can be created in the following way:

  • Expressed in the form of a deed. An easement can be expressly granted or reserved. For example, in the sale of part, a landowner may reserve some rights, and grant others to the purchaser. When the land undergoes registration, the easement will appear on the title.
  • An implied easement may be implied by necessity or may be a common intention at the time of sale.
  • An easement may be created by prescription which may arise when one party has been using the other’s land, without permission, interruption and continuous, openly and peaceably for at least 20 years.

It is not uncommon for an easement to exist informally, and therefore it is prudent for a purchaser to investigate the position on the land thoroughly before committing themselves to a transaction. An easement may not always appear on the paper title.

Typical Easements

  • Rights of way;
  • Rights of light;
  • Rights of drainage and to lay pipes, cables and wires etc;
  • Rights of support, and
  • Rights to use facilities eg kitchen, washroom.

Developers Beware!

As above, developers must be particularly careful with their investigations when acquiring land for development purposes. An easement can influence a developer’s proposed use of the land. It is important to understand the effects of an easement before the developer purchases land, and spends significant sums  on a proposed development.

In Parker and Another v Roberts, the Court of Appeal demonstrated the importance for developers to ensure that all of the land they have purchased to develop has the benefit of all the required easements under their development scheme. This case involved an obligation to contribute towards the maintenance of a private road, however this obligation did not imply a right of way over the private road.

An expressed right of way had been granted to the benefit of the land owned by a developer, however it did not expressly extend to other adjoining land that the developer also owned, and which was included in the development plans. The fact that the developer was required to contribute to the maintenance and repair of the road was not enough to imply a right to use the private road to access such adjoining land.

As result, the developer in this case was unable to develop the adjoining land as there was no access to a public highway.

Ringrose Law’s Commercial Property Department have a wealth of knowledge and experience in ensuring that every plot comprising a development has all the necessary express rights/easements required. If you require any assistance, please do not hesitate to contact us.

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