Easements

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Easements:
Rights over neighbouring land

 You are here:    Boundary Problems  |   Practicalities  |  Easements: Rights over neighbouring land
What is an easement?
Private right of way
Car parking
Right of Support
Right to Light
Water Rights
Wells
No right to sun or air
No right to a view

 

What is an easement?

An easement is a right benefiting one parcel of land (known as the dominant tenement) that permits the rightful users (not necessarily solely the owner) of that land to perform specified actions over a neighbouring parcel of land (known as the servient tenement). Probably the most commonly used easement is one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath the land of one or more neighbouring properties. Perhaps the most widely known easement is the private right of way. There are others, such as the right to light, right of support.

Usually the "rightful user" referred to in the preceding paragraph is the owner of the dominant tenement. In the case of a private right of way it is anyone with a legitimate purpose for visiting the land (which could be the rightful owner, his immediate family who live there, any servants or staff who work there, anyone visiting the land for social or business or duty reasons). This explains why the postman (for example) may make use of the private right of way even though he does not own the dominant tenement.

An easement may be created in a number of ways. One is by express grant . In this case there may be a Deed of Grant that states the terms of the easement, or the grant may take the form of a clause in a conveyance deed or a transfer deed.

An easement may be created of necessity. Thus a parcel of land will have a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and that parcel of land.

An easement may also be created by prescription. This happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of at least twenty years.

If a parcel of land is sold together with an expressly granted easement then that parcel becomes the dominant tenement that has rights over neighhbouring land. At the same time, if the vendor of that same parcel of land reserves a right over the land being sold then it is also a servient tenement burdened with the rights reserved for the vendor's retained land.

If there is a doubt as to whether or not an easement exists then the law tends to favour the existence of the easement. As the Law of Property Act 1925 puts it:

"62.(1) A conveyance of land shall be deemed to include and shall ... operate to convey, with the land, all ... liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance ... enjoyed with or reputed or known as ... appurtenant to the land or any part thereof. "

An easement cannot be created as a result of an illegal act. Thus the driving of motor vehicles across common land does not create a private right of way.

An easement is very difficult to extinguish and should be thought of as existing forever. The land of the servient tenement is burdened with the easement. The owner of the dominant tenement should not forget that the owner of the servient tenement has a right to the peaceful enjoyment of his land and the legitimate development of his land, and the performance of the easement should not interfere with the servient owner's peace nor prevent him from exercising his right to develop his land (provided that the development caters for the easement).

An easement is said to "run with the land", i.e. it cannot be sold separately from the land but must be passed on with the land whenever the land is transferred to a new owner.

 

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Private right of way

A right to pass and re-pass along a privately owned road, or across privately owned land is one form of easement. It is discussed separately at Private Rights of Way

 

Car parking

A right for a landowner to park a car anywhere in a defined area nearby is capable of existing as an easement. This is discussed separately at Other neighbour disputes

 

Right of Support

In many city and town centres the buildings are physically joined to each other, by a party wall, so as to mutually support each other. If one such building were to be demolished it could cause at least partial collapse of its neighbour. The remaining building has a right of support from the demolished building, and the owner of the adjoining land owes a duty of support to the remaining building. Thus it is necessary for the owner who demolishes his building to provide for the continued support of the remaining building on neighbouring land.

The same right of support and duty of support applies if ground is removed too close to a neighbouring building.

The right of support can also apply to ground (as distinct from a building) that is in danger of collapse as a result of excavation on neighbouring land.Thus a right of support also exists in the case of retaining walls that coincide with a property boundary. See Walls

If you wish to demolish a building that has a party wall, or if you own the building next door to the proposed demolition, consult a chartered building surveyor for advice before the start of any work on the building.

 

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Right to Light

Rights to light can be a complicated area. In the absence of a restrictive covenant on your neighbour, it may be difficult to argue that he should not have planted those trees that are now blocking your light. It may be more difficult still to argue that he should remove the newly erected building that now blocks your light.

It is important to remember that the right is enjoyed by the land, not necessarily by any particular building or window on it. It is therefore possible to demolish an old building and replace it with a new one and still claim a right to light through the new windows. However, if the windows in the new building are significantly smaller than those in the demolished building, you may have great difficulty in proving that any reduction in light is due to the actions of your neighbour.

For advice on rights to light, consult a chartered building surveyor who specialises in the subject.

 

Water Rights

These usually take the form of a right to draw water from a watercourse or a spring on a neighbour's land. Problems can arise if you increase the amount of water that you take, or if the natural flow diminishes below a level that will support your needs. If you should stop using the water because you have made arrangements for an alternative water supply, you may have difficulty if you try to draw on the water again after a gap of many years.

For advice, consult a water engineer.

 

Wells

There are still a few houses in this country that are not connected to a water supply. They are quite likely to enjoy the benefit of an easement that allows them to draw water from a well in neighbouring land.

 

No right to sun or air

From time to time people have experienced problems relating to the natural elements of wind and sunshine. For example, if a new structure on a neighbour's land obstructs the passage of air to a windmill, or interferes with the extraction of smoke from a chimney, or prevents the sunshine from reaching solar panels. Whenever a landowner has attempted to pursue through the courts a claim to a right to air or sunshine, the case has been lost.

 

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No right to a view

You may buy a house because of its view of a local landmark. But if a neighbouring landowner blocks that view then there is nothing you can do about it.

For some home buyers the view afforded from a particular property may be a major selling point. Unfortunately for those people there is no right to that view. If there was such a right then no neighbouring land owners would be able to develop their land.

If you buy a house overlooking farm land then it is entirely possible that the farmer may sell the land adjoining your own to a developer who will cover it with many more houses, completely changing - possibly ruining - your view. There is nothing you can do about this .... unless you have both the foresight and the money to buy up the farmland to prevent it from falling intro a developer's hands!

If, on the other hand, you live next to a neighbour from hell who realises that by planting a fast-growing coniferous hedge on his side of your common boundary he can cause you considerable annoyance, then you can deal with his hedge under the Anti-social Behaviour Act 2003: see the Statute Law page.

 

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