Table of Contents
- What is an Easement?
- Types of Easements
- 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
- Creating an Easement
- Extinguishing an Easement
- Seeking Advice
What is an Easement?
An easement is a right that benefits one parcel of land (the dominant tenement) by allowing its rightful users to perform specific actions over a neighbouring parcel of land (the servient tenement). Common examples include allowing underground services to pass beneath a neighbouring property or granting a private right of way. The rightful user is usually the owner of the dominant tenement, but in the case of a private right of way, it can include anyone with a legitimate purpose for visiting the land, such as family members, staff, or visitors.
Easements can be created through express grant (via a Deed of Grant or a clause in a conveyance/transfer deed), necessity (when a parcel of land has a right of way over the only means of access to a public highway), or prescription (when someone openly carries out an act capable of being an easement for at least 20 years without the servient landowner’s permission). If there is doubt about the existence of an easement, the law tends to favor its existence, as per the Law of Property Act 1925.
An easement is difficult to extinguish and should be considered as existing forever, burdening the servient tenement. However, the dominant tenement owner should not interfere with the servient owner’s peaceful enjoyment and legitimate development of their land. Easements “run with the land” and cannot be sold separately from the land; they must be passed on with the land when transferred to a new owner.
Types of Easements
Private Right of Way
A private right of way is the right to pass and re-pass along a privately owned road or across privately owned land. This type of easement is discussed in more detail in the article on Private Rights of Way.
Car Parking
A landowner’s right to park a car in a defined area nearby can exist as an easement. This topic is covered more extensively in the article on Other Neighbour Disputes.
Right of Support
In urban areas, buildings often physically join each other through party walls, providing mutual support. If one building is demolished, the owner must ensure continued support for the remaining building on neighbouring land. The right and duty of support also apply when ground is removed too close to a neighbouring building or when a retaining wall coincides with a property boundary. Consulting a chartered building surveyor is recommended before any demolition work begins.
Right to Light
Rights to light can be complex. It may be difficult to argue against a neighbour planting trees or erecting a building that blocks light, unless there is a restrictive covenant. The right is enjoyed by the land, not necessarily by a specific building or window. Demolishing an old building and replacing it with a new one may still allow a claim to light through the new windows, but proving a reduction in light due to a neighbour’s actions can be challenging if the new windows are significantly smaller. Consult a chartered building surveyor specializing in rights to light for advice.
Water Rights
Water rights usually involve the right to draw water from a watercourse or spring on a neighbour’s land. Issues can arise if the amount of water taken increases or if the natural flow decreases below a level that supports the dominant tenement’s needs. Stopping water use due to an alternative supply and then trying to draw water again after many years may be problematic. Consult a water engineer for advice.
Wells
Some houses not connected to a water supply may benefit from an easement allowing them to draw water from a well on neighbouring land.
No Right to Sun or Air
Landowners have attempted to claim rights to air or sunshine when new structures on a neighbour’s land obstruct windmills, interfere with chimney smoke extraction, or prevent sunshine from reaching solar panels. However, such cases have consistently been lost in court.
No Right to a View
There is no legal right to a view, so a landowner cannot prevent a neighbour from obscuring their view.
Creating an Easement
An easement cannot be created as a result of an illegal act, such as driving motor vehicles across common land.
Extinguishing an Easement
Easements are very difficult to extinguish and should be considered as existing in perpetuity.
Seeking Advice
When dealing with easements, it is advisable to seek professional advice from chartered building surveyors, water engineers, or other relevant experts, depending on the specific type of easement in question.
Note: This article is intended for informational purposes only and does not constitute legal advice. Always consult with a legal professional before taking any action.