An easement is a right that someone may have to use land that they do not own in a certain way, or to prevent the owner of that land from using it in a certain way. Examples of common easements include rights of way and a right of light. They are usually created on a sale of part of land.
What are the requirements for an easement?
In order for an easement to be created, certain conditions must first be satisfied:
- there must be a ‘dominant’ and ‘servient’ piece of land, with the dominant land gaining the benefit of the easement and the servient land granting the burden of it;
- the dominant and servient pieces of land must be owned and occupied by different people; and
- the right must be capable of being granted by deed.
How are easements acquired?
Easements can generally be granted by one party to another, or reserved by one party for themselves. For example, a landowner could grant his neighbour the right to walk across his land in order for the neighbour to access his own property; or the landowner could reserve or retain for himself the rights of drainage over his neighbour’s land. Easements may be acquired by statute; express grant or reservation; implied grant or reservation; or prescription.
- Express easement is created if the grant or reservation is by deed. This normally occurs when a person sells part of his land but retains another part, necessitating the creation of a written easement to allow the original landowner or the buyer to properly enjoy their land, or to enable them to access their land. An express easement is automatically binding when the land is unregistered and does not require registration. When either or both the dominant and servient pieces of land are registered, the express easement will need to be registered against either the servient, or both titles.
- Implied grant also arises when a landowner sells part of his land and retains part. Sometimes legal easements may be impliedly granted to the buyer by law even though the parties have not expressly agreed to this right. This may occur in specific circumstances; for example, an easement of necessity will be granted if the easement is absolutely necessary for the enjoyment of the land sold, i.e. if the buyer of the land is completely landlocked and requires access over the seller’s retained land.
- An easement will only be impliedly reserved in favour of the seller of land if it is an easement of necessity (as above) or if it can be inferred from the circumstances that both parties must have intended that particular right to have been reserved.
- Easements can be acquired by prescription if one party has used the other property or land in a continuous and open manner for a certain number of years. Usually claims for easements to be implied by prescription are made under the Prescription Act 1832, whereby the period of uninterrupted use must be at least 20 years.
Extinguishment of easements
Easements may be extinguished if:
- the dominant and servient pieces of land come under the ownership of the same person;
- the easement reaches a formal expiration date;
- the owner of the dominant piece of land expressly releases or terminates the easement by deed; or
- release is implied, e.g. if the dominant owner has not used the easement for more than 20 years.
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