Know your property boundaries: is an easement to blame?
Boundary issues, in the context of property and land, raise some interesting legal issues. Many people share access to their property with their neighbour over a shared driveway, or use a right of way over land, such as a path, that does not belong to them; the legal term for this is an easement.
21 August 2015
What is an easement?
An easement is a right that permits users - but not necessarily the owners - of the land to perform specified actions. This could be over or under a neighbouring parcel of land.
To explain it more clearly, the example of a common type of easement is one that allows underground services such as water, drainage, gas or electricity to pass under the land of one or more neighbouring properties. Other examples include rights of way or a right to light.
An easement can be created by:
- Express grant - the landowner, for example, expressly grants the right in a legal document such as a conveyance or a transfer.
- Necessity - for example, if the land or property is land-locked and there is only one means of access between a site and a public highway.
- By prescription - i.e. there has been continuous long user without any interference or objection.
Conversely, easements can be removed by way of formal legal agreement or over time if a limitation period was agreed. However, these can come at a cost.
What are the benefits of an easement?
To check if there is an easement affecting your land, or if your property has the benefit of a right of way over neighbouring property, a title investigation is necessary. Most land is now registered at the land registry and a title check will establish which rights benefit or affect the property.
Easements can be a source of contention between neighbours. Excessive use of a pathway can lead to disputes, circumstances change, neighbours fall out and may decide not to uphold the terms of the original agreement. Additionally, a person may not be aware that a legal right of way exists if they have not been advised properly when they acquired the property.
There are numerous legal issues involving easements. Ensure you get it right by involving a lawyer to advise on drafting them correctly in the first instance to make sure your position is protected for the future and to report on what easements affect your property or from which you will benefit. An easement can be very difficult to remove so get it right from the outset and know what matters affect or benefit your property. Easements run with the land and will bind successive purchasers when the land is transferred to a new owner.
All information was correct at the time of publication.