Easements and rights of way – Get off my land!
If your land is subject to an easement, for example, a right of way, you may be wondering who can access your property and for what purposes. If your land has the benefit of an easement over adjacent land you may consider that your exercise of the right is being obstructed.
What is an easement?
At its most basic, an easement is a ‘right to use another person’s land for a stated purpose.’ The easement could refer to an entire property or just a part of it and the ‘stated purpose’ could be anything from laying water pipes to accessing another property. An easement is granted by one property owner to another and typically means the original landowner can no longer build on or around the land subject to the easement or restrict access to it.
A common type of easement is a right of way. Normally a private right of way is agreed between adjoining landowners. This may be because it is necessary to cross one property to reach the other or the easement allows for a more convenient point of access or one property owner needs to cross another’s land to reach the public highway. Or an easement may be granted by one property owner to another to facilitate access to historically important public woodland or a river used for fishing.
There is also a public right of way, also known as ‘the right to roam.’ This usually arises for one of two reasons: either the landowner has given permission or the local community has traditionally used the right of way for many years. This is different from a private rights of way which restrict the right of access to the owner or occupier of adjacent or nearby land and is limited to its intended purpose. Private rights of way and other easements that were expressly granted are defined by the actual words used to grant or reserve them. Those which are implied or arise by prescription are harder to define as they depend on the nature and extent of the use which has created them.
What are the types of easement?
There are different types of easement, depending on how the right came into existence:
- Express grant or reservation – typically enshrined in the deeds to a property. It usually occurs when an individual sells part of their property and either needs to grant rights to the sold land or wants to retain some rights over the sold land. These may include a right of way or the ability to maintain utility infrastructure.
- Prescription – which applies when an individual has been openly using land in a certain way for over 20 years. If they can prove that this is the case, an easement for continued use may exist.
- Implied grant or reservation – again, typically occurring when part of a property is sold. However, rather than being written into the deeds to the property, the right is implied by law, based on how the land was being used at the time of sale.
- Easements of necessity - if crossing the land that has been sold is the only means of accessing the land that has been retained, so that it has become landlocked, an easement of necessity may exist.
Who has access to easements?
Private easements and rights of way can only be legitimately used for their intended purpose (e.g. for residential access or to maintain utility infrastructure) and are rights that belong only to the owner of the land which has the benefit of the easement. However, ‘right to roam’ easements are open to the general public and cannot be restricted in any way.
What are the problems with easements?
It is not always clear whether an easement has been implied on sale. Prescriptive easements are often hard to define. Trouble can also arise when the use of land changes. For example, when someone who relies on access over neighbouring land builds another house on the grounds of their property or develops agricultural land as residential. Or when a sewage treatment plant serving a small number of houses faces an increased burden due to development. Sometimes an access way requires repair and it is not always clear who should pay for the work. It is sometimes claimed that an easement has been abandoned because of non-use although this is rarely the case.
What should you do?
When it comes to rights of way, the first distinction is between public, ‘right to roam’ easements which permit any member of the general public to cross the land, and private rights of way which restrict the right of access to the owner or occupier of adjacent or nearby land and are limited to their intended purpose. Private rights of way and other easements that were expressly granted are defined by the actual words used to grant or reserve them. Those which are implied or arise by prescription are harder to define as they depend on the nature and extent of the use which has created them.
Once the scope of the easement has been established there may be a question about whether it is being unlawfully obstructed or merely restricted in some way which the law permits.
Find out more
If there are easements over your property and you are not sure what rights you have to control access, or if you have the opposite problem and need to access another property, talk to an experienced property litigation with solid expertise in property law.
