An easement is a right benefiting one piece of land (known as the dominant tenement) that permits the rightful users of that land to perform specified actions over an adjacent piece 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" I have 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 piece 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 the 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 least twenty years.
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.
Ideally,
the owners of both the dominant and servient tenements should know
exactly:
• where the right of way runs from and to;
• exactly what route the right of way follows between
those two points;
• whether there are any width,
weight or height restrictions on the traffic that uses the right
of way;
• whether the traffic permitted to use the
right of way includes motor vehicles, motor cycles, or is restricted
to passage on foot;
• whether there are time restrictions
in force, either as to time of day or day of the year, on which
the right of way may be used;
• who is responsible
for the maintenance of the right of way.
Rarely are all, or even
a fair proportion, of these things known.
Generally:
• you may pass and repass along a right of way as long
as you do not stop and linger on the right of way;
• if
the right of way is obstructed then you may divert along another route
provided that the diversion remains on land belonging to the servient
tenement (otherwise you would be trespassing on a third party's
land);
• a gate is not considered as an obstruction of
the right of way provided that the users of the dominant tenement
have the means of opening and/or unlocking the gate;
•
• the owner of the dominant tenement cannot
expect the route to be widened, strengthened or given extra headroom just because his needs have changed:
he is entitled only to the width, weight or headroom that was envisaged
at the time of grant of the right of way.
A
private right of way on foot permits you to:
• pass
and repass on foot between the dominant tenement and the public
highway;
• with or without a load that one person
might be expected to be capable of carrying;
• or
pushing a small barrow or trolley or perambulator, or wheeling (not
riding) a bicycle, provided that the wheeled device is not too wide
to be accommodated by the footpath and by any gates along the path.
A
vehicular private right of way permits you to:
• drive
vehicles of up to a permitted width, height and weight along the
carriageway between the public highway and the dominant tenement;
•
stop a vehicle on the right of way immediately adjacent to
the dominant tenement for the purpose of loading and unloading that
vehicle;
•
perform other reasonable acts, such as pulling off the carriageway
onto the verge in order to pass oncoming vehicles.
A vehicular right of way is not a right of parking.
If the width, height and weight limits of the right of way are not explicitly stated in the deed of grant then the courts will decide that these limits were set by naturally occurring restrictions that were in place at the time of the grant, such as the width of a gate at the entrance to the carriageway.
It is quite common to find a carriageway that is much narrower than the defined width of the right of way, for example a 10 feet wide carriageway within a 40 feet wide right of way, with 15 feet wide verges on either side of the carriageway. In these circumstances it is perfectly acceptable to pull onto the verge in order to avoid a collision with oncoming traffic, but it is not acceptable to drive along the verge just because it falls within the stated width of the right of way.
Repairing a private right of way
If
the right of way falls into disrepair, and if no-one can be identified
as the party responsible for maintenance and if the owner of the
servient tenement does not repair it, then the owner of the
dominant tenement (who is inconvenienced by the poor condition of
the way) may repair the way but must be careful not to improve the
way (for it is not his land to develop). Thus a gravel drive may
be re-graveled by the owner of the dominant tenement but must not improve
it by concreting or tarmaccing
the surface.
Sometimes the owners of properties served by the same private road will form a club, often referred to as a road fund committee, charged with looking after the maintenance of the private right of way. They can do this if each property served by the road includes the portion of road (even if only up to the centre line) that fronts it. The costs of carriageway repair are met from funds raised through membership subscriptions. If the road fund committee decides to improve, rather than simply repair, the carriageway then each owner, being the servient owner of the road that fronts his property, is deemed to have given his permission for improvement of the road.
Varying
and extinguishing a private right of way
The
owner of the servient tenement is entitled to develop his own land,
and this can come into conflict with his neighbour's overriding
interest, ie. the right of way.
It may be possible, bearing in
mind the configuration of the land in the servient tenement, to
redefine the right of way along a new route. This has to be negotiated
with the owner(s) of the dominant tenement(s) before a Deed of Variation
can be drawn up by a solicitor.
It may be desirable for a right
of way to be extinguished altogether. Again, this has to involve
negotiation with owner(s) of the dominant tenement(s). It is usual
in these circumstances for the owner of the servient tenement to
pay all of the costs associated with obtaining a replacement right
of way (over a third party's land) for the dominant tenement(s).
A deed of Extinguishment is needed to formalise the extinguishment.
Excessive
user
Owners
of servient tenements are sometimes aggrieved when there is a dramatic
increase in the traffic using the right of way across their land.
They may take Court action pleading excessive user, ie. that a higher
level of use than permitted has taken place. Such action is almost
certainly doomed to failure because, whilst other limits may be
in place on the right of way, there is usually no limit on the number
of times in a given period that the dominant tenement may use the
right of way.
Inherited right of way
There
are two entirely different situations that I want to describe under
this title.
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A right of way over South Lane was granted to
benefit the land in field 'A' at a time when field 'A' was owned by Mr
Smith. Completely separately, a right of way over North Lane was granted to
benefit the land in field 'B' at a time when field 'B' was owned by Mr
Jones.
Mr Jones (or strictly speaking, field 'B') does not enjoy a right of way over South Lane and Mr Smith (or strictly speaking, field 'A') does not enjoy a right of way over North Lane. At a later date, Mr Smith purchased field 'B', which is contiguous with field 'A'. Mr Smith now owns all of the land connecting the end of North Lane with the end of South Lane. However, Mr Smith is not, by law, allowed to use South Lane as a means of access to field 'B', nor is he allowed to use North Lane as a means of access to field 'A'. The right of way over South Lane is enjoyed only by the land that was identified in the Deed of Grant as the dominant tenement, ie by field 'A'. Field 'B' is not a dominant tenement relative to South Lane, and so South Lane may not be used as a means of access to field 'B'. Similarly, field 'A' is not a dominant tenement in relation to North Lane.
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In other words, if a parcel of land that benefits from a right of way is sub-divided into smaller parcels then each of the smaller parcels inherits and also benefits from that right of way. Matters are rarely this simple: there is the matter of gaining planning consent for developing each of the smaller parcels of land, as well as the matter of gaining approval for the increased traffic flow along roads that may or may not be suitable for the increased traffic. |
The first situation
concerns two fields, 'A' and 'B' that are contiguous
with each other.
The
second situation concerns a right of way benefiting a large plot of land
whose owner wants to subdivide that plot. It should be remembered
that the right of way benefits all of the land in the dominant tenement.
If the land is subdivided then each and every small plot derived
from the original dominant tenement inherits the right of way and
may use it for the same purposes as the original grant allowed. Problems can occur:
when someone, not
necessarily the servient owner, blocks or
restricts the right of way.
when trying to
decide who pays for the maintenance of the right of way
(repairing the road surface, or clearing vegetation from
the pathway).
when the servient owner wishes
to change the route of the right of way. when the owner of the
dominant tenement claims to have rights in excess of those granted
to him.
when the servient owner
plans development within the right of way or butting up against
the right of way. when the servient owner
requires to make his property secure by means of locked gates placed
across the right of way.
What you
should do
The first thing to do is to check your title certificate
and/or conveyance deeds to confirm that there is an
easement and to check the terms of your right of way.
With luck (but this is not always the case) there will be
an accurate description of the extent, shape and form of
the right of way, and a statement of who is responsible
for its maintenance.
Next, consider whether your rights are being infringed and the amount of inconvenience you are
suffering. Try talking to your neighbour to find out what his point
of view is and then see if you can negotiate a settlement that accommodates
both your needs.
If this fails, or if your neighbour is unapproachable in the first instance,
and you need professional help, then consider what your needs are
before seeking the appropriate professional help:
•
If
you need someone to tell you where and how wide the right of way
is, you need a chartered land surveyor;
•
If
you need someone to interpret the legal terms of the grant
of easement you need a solicitor.
In either case, make sure you
approach one who specialises in rights of way.
To be added
On your own land
Generally,
you may park a vehicle or vehicles wherever you want to on your own
land.
The principal exception to this is that if there is a right of way (private or public) across your land then you must take care not to obstruct that right of way.
If you want to lay hard standing, erect a car port, or build a garage on your land then you should be aware that you may need to seek planning permission.
Some housing developments built in the second half of the twentieth century did not make provision for parking on one's own land but provided centralised garage and parking facilities. The ownership of an individual garage is identified in the deeds to the parent land to which it belongs, but unless the ownership of individual parking bays is also specifically identified then the parking bays are available to everyone on a first come first served basis.
On someone else's land,
including private roads
Parking your vehicle on someone else's
land without their permission amounts to trespass.
Parking your car on a private
road (unless you own the road) is trespass and also puts you at
risk of obstructing the right of way of others.
Do
not park on a private road unless you are sure that you are not
causing an obstruction by so doing.
A landowner may give you permission, whether or not he demands a fee for it, to park on his land. Such an arrangement is known as a licence. A licence is a form of contract and can therefore either reach an expiry date or be terminated. Alternatively, the landowner may expressly grant an easement to permit parking on his land. Such an easement is of course a permanent right attached to the land of the dominant tenement, and the right to park will persist after either or both of the dominant and servient tenement is/are sold to a new owner. Such a parking easement can apply either to a private road or to private land that is not a road.
If a parking easement can be expressly granted then it might follow that a parking easement might be established by prescription, ie. that by parking openly and without the owner's permission on a private road or private land for the qualifying period of twenty years an easement would be established. There may be a problem here, in that the parking of a car in the spot every day (or night) might be seen as excluding the rightful owner from the land that is parked upon, ie. it might be seen as attempting to establish adverse possession (over a twelve year period) of the land. It therefore appears that a prescriptive right of parking can be established only if the would-be dominant tenement parks in different locations within a general area (such as at various points along that part of the private road fronting one's property).
On public roads
Local authorities have powers to prohibit,
restrict or control parking on the public roads (which they
effectively own). Prohibition is often effected by painting yellow
lines along the side of the road. An example of restriction is a
scheme where parking spaces are reserved for permit holders (who
qualify for a permit by residence in the affected street). Examples
of control include provision of off-street car parks (ground level,
underground or multi-storey) and on-street parking in designated
bays where the duration of parking is strictly limited. Local authorities
have power to charge parking fees.
There is no automatic right to park on a public road, even when there appears to be no prohibition, restriction or control in place. Parking (as opposed to stopping to unload) a vehicle might be seen as creating either an obstruction or a danger to other road users.
Even where on-street parking is clearly permitted or tolerated, you cannot presume to have a right to a specific parking space, such as the one in front of your own house.
A shared driveway is an access way, standing partly on one owner's land and partly on an adjacent owner's land, over which both owners enjoy a right of way.
There are two common situations in which shared driveways exist. One concerns houses built in the 1930's or earlier, before motor cars became commonplace. It takes the form of a driveway passing between two houses to give access to garages or hard-standing sited in the rear garden. Usually the boundary runs straight up the centre of the drive. The other concerns more modern housing estates where the developers have had to economise on space and either provide a single driveway to service a number of houses, or provide an access route to a garage (usually in the front garden) that crosses a neighbour's garden, usually with the neighbour enjoying a similar arrangement over the first owner's garden.
A shared driveway is subject to exactly the same rules that govern any other private right of way. The only difference is that in the case of a shared driveway a landowner is both the owner of the servient tenement (over his own half of the driveway) and the owner of the dominant tenement (over his neighbour's half of the driveway). Most people who use a shared driveway have no difficulty with the concept of exercising the dominant tenement over their neighbour's half of the driveway, but some have difficulty with playing the role of servient tenement and allowing their neighbour access to their own half of the driveway.
Neither neighbour has a right to park their car on a shared driveway. The half of the car that is on the neighbour's land has no right of parking, and the half that is on its owner's land is obstructing the neighbour's right of way.
Neither neighbour has a right to store anything (such as dustbins, stocks of garden or building materials, tool stores, etc) on the shared driveway as this would obstruct their neighbour's right of way.
As with other rights of way, it is possible to extinguish a shared driveway, but the owner who wishes to do so would be expected to compensate his neighbour for inconvenience, loss of utility and diminished value of his land.
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 same applies
if ground is removed too close to a neighbouring
building. The right of
support can also apply to ground that is in danger of
collapse as a result of excavation on neighbouring land.
What you
should do
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.
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.
What you
should do
Consult a chartered building surveyor.
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.
What you
should do
Consult a water engineer.
Other Rights ?
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.
What you
should do
This is a case where prevention is better than cure. In
other words, if you have foreknowledge of your
neighbour's intention to build a structure that will
interfere with your air and sunshine, make sure you take
the opportunity to object to his planning application.
This will not guarantee you success, but it is the best
chance you have.
This page was updated on 08 December 2007