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Rights of way and easements for development sites

29th January 2020

It is common for news story to emerge when a wealthy celebrity attempts to stop members of the public crossing their land; TV chef Gino D’Acampo is just one of the latest, as he tries to close a public footpath near his mansion in a bid to shut out autograph hunters.

This is one of the more common examples of the way in which rights of way and easements can impact on people. For land-owners who do not undertake proper due diligence however, being disturbed by a steady stream of hikers is actually only a minor manifestation of the issue.

In simple terms, an easement is a right which one piece of land, known as the ‘dominant land’, has over another piece of land, known as the ‘servient land’.

These rights apply when the pieces of land have different owners, and may include rights such as the owner of the dominant land having a right of way through the servient land in order to access their property.

Different Types of Easement

As explained above, easements can be formally documented or arise from long use over a period of time. Some types of easement include:

  • Express Grant – this will usually be detailed in the deeds or title register to a property. This generally happens if an individual sells a part of their property, but wants to maintain rights to benefit their retained land, such as a right of way for access or the ability to perform maintenance of any utility infrastructure.
  • Prescription – as detailed above, a person openly exercising a right for more than 20 years may be able to claim that an easement has been created by prescription.
  • Implied – as with an express grant, an implied grant generally occurs when part of a property is sold, but its existence is implied by law, for example in circumstances where the land retained or sold would otherwise be landlocked without the necessary implied rights. Implied easements are difficult to claim.

Easements and land development

As a developer purchasing a piece of land, it is vital that you make yourself aware of any easements the land is subject to, as they could have a major impact on what you can or cannot do with the land in question.

Most easements are permanent in nature and will usually have to be expressly released by the owner of the dominant land in order to cease effect; even non-use of an easement over a prolonged period of time may not be sufficient for the easement to be extinguished.

It should also be noted that the easement applies to the land itself, not a particular owner or developer.

You may have played no role in deciding to grant an easement or right of way, but you will still be bound by it, with the issue depending on factors such as whether the land is registered or not, and how the easement came to be in place.

In all cases, further investigation and enquiries beyond review of the title register is absolutely imperative, as specific easements can arise through years of long use (known as prescriptive rights, or acquiring an easement by way of prescription).

If the dominant landowner can show that they have enjoyed the rights for 20 years or more without permission, but also without challenge or secrecy, then an easement is said to be created, and they will continue to enjoy the benefit and use of such an easement. Such easements would not have been immediately obvious from a review of the title register or deeds only.

Another important consideration is that of excessive use – if you, as a developer, wish to make use of an easement for matters such as access to a development or the installing of utility pipes, cables and other equipment, then it is vital to ensure that the use does not become excessive.

What amounts to “excessive” would include any use which increases the burden on the servient land, and could result in a claim for trespass.

For a developer, easements can be both a problem and a benefit, impacting on the degree to and manner in which a site can be developed. The worst kind of problem faced is generally the risk or reality of injunctive proceedings.

These often occur when a developer has not acted in a reasonable manner with regard to easements, and in which an offer of damages is not considered sufficient to remedy any harm or distress caused.

An injunction which brings development work to a halt, even for a relatively short period, could prove to be financially ruinous for the project in question.

Even if you only become fully aware of an easement after development begins, any interference with that easement should be handled with the utmost care.

One option to remove the risk of an injunction is to negotiate with the dominant owner in order to agree a course of action. This should only be attempted after taking extensive legal advice, particularly with regards to the impact such contact may have on any indemnity insurance.

An agreement could be reached regarding ways in which the easement might be varied or ‘paused’ while development takes place and a joint plan could be drawn up to minimise the impact of development on the spirit of the easement.

Any developer who wishes to mitigate the impact of easements and rights of way on the site, or to ensure that they have sufficient and necessary right benefiting the site, should bear the following advice in mind:

  • Carry out in-depth due diligence, including physical inspections of the site, in order to check for any signs of easements, such as footpaths worn across land, and to gauge the full practical impact of any easements already known about
  • Back this up with a full record of plans, photographic evidence and deeds
  • Take expert legal advice to help understand the full implications of any evidence gathered. Your understanding of a ‘reasonable’ easement may not agree with the legal definition
  • Never assume an easement has been abandoned through apparent lack of use
  • Work to adapt your development to fit within the scope of any easements
  • If you intend to rely on easements, ensure that they are enforceable and broad enough to meet any current and future requirements

If you are considering acquiring land to develop and would like to discuss any matters, or easements in particular, please speak to Jonathan Rowley, an experienced Associate Solicitor in the Commercial Property team here at Ansons on 01543 466660 or email jrowley@ansonssolicitors.com