Easements exist in the majority of freehold titles and so they are important to conveyancers and buyers alike. Easements are certain rights that a person has over another’s land. Rights range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications cables, power supply lines, supply pipes and drains, rights to use communal gardens and rights of light, to more strained and novel forms. All types are subject to general rules and constraints.
Some classes of easement are heavily constrained, the courts will only uphold these subject to wide-reaching public policy, chiefly property rights interference, tests they have laid down in precedent. Similar tests apply to the implication of easements. If they fail on any of these tests the right claimed may be interpreted as a “mere” licence, typically a right of use revocable at will. Details of the use, wording and history of certain rights are pivotal. Prime examples of express purported easements which will only be upheld on particular facts are the use of a communal garden with a public dimension or the use of parts of another person’s land for parking.
The necessity of easements is shown by the Law Commission’s 2008 statistical finding that express easements exist over or under at least 65% of registered freehold titles. In many cases, it is impossible for a landowner or tenant to access a public highway without an easement of a right of way over intervening land. The creation of easements is usually done expressly by deed, but easements may be implied where they are necessary or would be reasonably expected to be held by a landowner, an approach which reduces legal fees but is not altogether uncontroversial, and has been the subject of recent reform proposals.
To find out more, join our complimentary webinar. Redbrick Solutions and CLS Property Insight are delighted to be hosting a webinar on Understanding Easements. Senior Business Development Manager, Neil Wood will explore the different types of easements and methods of treating them illustrating the issues through case studies from CLS clients. The Webinar will cover; What is an Easement and why are they important to a buyer? Types of easement and how they are created, Prescriptive easements (long user), Ending an easement and CLS Property Insight easement policies.
The webinar will be taking place on 16th March at 11am. Please register here if you are interested. https://attendee.gotowebinar.com/register/6172712566069911311