Easements and rights of way

Sometimes people other than the owner have rights over privately owned land. Depending on the type of rights given, these are known as easements or as profit-a-prendre.

We explain what they are in this article.

What is an easement?

An easement is a right to access or use land or property belonging to someone else in a particular way.

For example, the general public might have a right to cross a field on a defined footpath. Or the owner of a neighbouring house might have a right to access a drain that runs under both houses.

An easement can also be a right to prevent someone from using their land or property, if such an action would be detrimental in a specific way to someone else.

For example, your neighbour may have the right not to have any tall structures built, or plants growing on your land that would obstruct sunlight from reaching his garden.

However, an easement is not a right to prevent someone from using his or her land. Any prevention must be specific, and must exist in order to protect someone else's specific rights.

Does an easement allow someone to take produce or natural resources from the land?

No. The right to take produce or resources in known as profit-a-prendre.

For example, Net Lawman's grazing agreement is a profit-a-prendre giving the right to take a crop of grass.

How does an easement come about?

An easement may be made expressly, by implication or by prescription. These terms mean the following:

Express grant

An easement made by express grant is one that has been written down (expressly stated), usually in a deed made at the time of sale of the property.

It confers rights to someone (usually the seller) to access or use the land.

For example, if one person requires a drain to be built to a new house, and the only way of connecting it to the mains sewerage system is by running pipes underneath a neighbour's land, the neighbour may grant the right for this to happen.

It is usually the person who will benefit from the easement who pays for the cost of preparing the deeds.

An easement can be for a fixed term, for example, while a new house is being built.

Implied grant

An easement made by implied grant is one where the rights are implied by law, and not specified in any deed. They usually arise when a landowner sells his or her property. Implied grants are also known as easements of necessity.

A common situation in which implied grants come about is that where a parcel of land (for example, an agricultural field) adjoining another is sold, and the only way to access the land that the seller retains is from the part sold.

Prescription

If land has been used for long enough openly by a non-owner without permission from the owner then a grant of easement may be made that allows continued use in this way. The qualifying time period during which the land must have been in continuous use is 20 years.

How can an easement be stopped?

In legal terms, an easement is extinguished when it is stopped or comes to an end.

Easements are extinguished when:

  • an Act of Parliament is made that terminates the rights.
  • an expiration date stated in an express grant has passed.
  • a new deed revokes the easement.
  • both pieces of land concerned come into the ownership of the same person.
  • the easement has not been used for at least 20 years.

Someone cannot have an easement over land he or she owns.

Rights of way

A right of way is a common type of easement that allows the general public to cross land using a marked footpath, bridleway or byway.

Rights of way may exist for numerous reasons. Many public footpaths have existed for a very long time, originally providing a means to reach places of importance for local people who were not the owner of the land. These tend to be prescriptive easements, existing because the path has been used uninterrupted for at least 20 years.

Landowners and also give permissive access, by reaching a formal agreement with a local council (recorded as an express grant), or informally by publicising permitted access.

Can a right of way be closed?

The local highway authority has the power to close, permanently or temporarily, or divert a route that is a right of way on public land.

Otherwise, rights of way on private land can only be extinguished in the same way as other easement.

Disputes

Disputes over easements are common, and most are over rights of way. Resolving a dispute out of court, for example through negotiation (or any alternative dispute resolution method) with a neighbour, is usually the most effective solution.

Disputes over public rights of way must be resolved with local highway authority, which are understandably more complex.

In most situations, obtaining advice from a solicitor about whether the right exists or not is preferable before confronting the other side.

Other relevant law

Under the Access to Neighbouring Land Act 1992, a neighbour has the right to gain access to your land in order to carry out essential repairs to his or her own, provided he or she gives appropriate notice. If you refuse access, then your neighbour can apply for a court order to force you to give access.

The Party Walls Act 1996 also sets out rights when a neighbour is building or changing a wall or fence along a boundary to your property and hir or her own.

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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