Easements: What's yours is theirs

Any experienced developer knows that there can be a number of nasty surprises lurking  under the skin of any development opportunity. Subsidence, protected species or other physical elements can all pose significant problems. However, there can also be “invisible” pitfalls affecting the land.

We recently acted on a case where the owner of a substantial sporting facility decided to develop its fields to expand the club, and to erect perimeter fencing for enhanced security. Despite the fact that it owned the land, and had legitimate intentions, the development was frustrated because local residents who owned houses adjacent to the field had been using it for a number of years and had acquired rights.

Rights such as these are known as “easements”. This is the term for the rights that third parties may enjoy to do something on somebody else’s land. Although the third party does not acquire ownership of the land, his rights can prevent the owner from using it as he wishes. This can be critical to determining the success of a development, since the developer may not be able to carry out the works if a third party successfully claims an easement and the matter cannot be settled. It is important to note that these easements can arise without the owner’s intention or knowledge, and they may not be in writing or noted on the title of the land. This can make them very difficult to identify.

If any party alleges to have an easement over target land, the first step is to check these four key criteria:

• There must be two parcels of land; the “dominant” land, owned by the party who can exercise the right, and “servient” land, over which the right is exercised 
• The easement must be used for the benefit and enjoyment of the dominant tenement
• The owners of the dominant and servient lands must be different parties
• The right must be something that one party could legally have granted to the other.

Easements come in many shapes and forms and common examples include rights of way, rights of light, rights to air, rights of support and rights of drainage. The list is not exhaustive and is subject to change. For example the court recently found that parking can be an easement.

There are a number of ways in which an easement can arise. First, it can be granted expressly, by parties entering into a specific deed. Express easements can also be created by statute, such as the exercise of compulsory purchase powers, or by utility companies, or even a will. These easements are easier to discover, as there will be a written document, or a statute that can be checked.

Easements also arise by implication. One example is “necessity”, where splitting a piece of land would otherwise result in one part becoming landlocked. Perhaps the most troublesome for developers is “prescription”, where a party has acquired rights because of a long uninterrupted period of use.

By way of illustration, if an individual can show he has been using a right of way for 20 years or more, without consent, interruption or objection by the landowner, then he may well succeed in establishing a prescriptive easement. There is no requirement for it to be in writing, and the unwary developer may be some way down the line before the issue is discovered.

A developer who interferes with an easement can find himself embroiled in court proceedings for an injunction and/or damages.

So - what can be done?

If the owner is willing to negotiate, the parties can agree to extinguish the easement. This is straightforward, but the owner cannot be compelled to negotiate, and it can be expensive. Similarly, the developer might be able to offer a suitable alternative, such as a different route for a right of way, however, this might not be practical.

Developers should therefore consider the history of the property to see whether there is any argument that express consent was granted, which would terminate any easement. Alternatively, if the owner of the easement has not used it for some time, there might be an argument that it has been abandoned. Finally, if there has been a change in the nature of the property, or the owner of the easement has used it excessively, this might be sufficient to argue that the easement has terminated.

Overall, easements can be hidden thorns in the side of developments. Early legal advice should be sought, with appropriate questions being asked, and detailed inspections carried out. Consideration should be given to entering into negotiations, correspondence or indemnity insurance before commitment to the project is irrevocable.

Jill Carey is senior associate in the real estate disputes team at Taylor Wessing