‘Deed of Easement’ – What is it and when is it required?

Land ownership comes with an array of rights and obligations, particularly when use of the land involves or requires access, use of any access to utilities or any other shared infrastructure. An important tool in managing such rights is an express written Deed of Easement. Whether you are a property owner, prospective buyer or developer, understanding this document and the concept of ‘easements’ is fundamental to avoiding disputes and securing the use of land.

What is an ‘easement’ and when might it be required?

In a nutshell an ‘easement’ is a legal right enjoyed by one landowner to make limited use of land owned by another party. Such rights run with and are attached to the land meaning they benefit the land and not just the person utilising the right.

Common types of easement include:

1. rights of way - such rights can be crucial where for example a parcel of land is landlocked i.e the land cannot be accessed from a public highway. In such a scenario, due diligence is required to ascertain if the title includes any rights over neighbouring land or if a new right of way over neighbouring land will be required;
2. rights to services allowing pipes, cables, drainage and the like to run, over or under another party’s land. Where a developer is looking to develop a site for new housing, then new utility connections and installations will be required; and
3. rights of access over neighbouring land in order to maintain boundary fences or buildings.

What is a ‘Deed of Easement’?

Easements can be created by a number of methods, including by implication, by reason of necessity, by prescription (i.e use over time) and by express grant. It is most commonly and expressly granted by way of a formal legal deed, known as a Deed of Easement. A Deed of Easement (or variation of it) can create, modify or extinguish an easement.

The Deed will usually specify the following:

1. the benefitting land known as the ‘dominant tenement’ and the burdened land known as the ‘servient tenement’;
2. the nature of the easement for example a right of way, or a right to lay pipes;
3. the responsibilities of each landowner including any obligations for maintenance, share of associated costs, how the easement is to be utilised as well as any access restrictions;
4. provisions for registration of the easements at the Land Registry which is crucial for enforceability.

A Deed of Easement can also be used to formalise historic use for example if a party has been using a pathway or service informally for years.

How long does an easement last for?

Easements are generally permanent and run with the land, however land can be ‘released’ expressly within a Deed or in some circumstances can be released by implication where the easement has not been exercised for some time. Moreover, where an easement is said to be granted for a specific time frame or purpose, then once that time frame has elapsed or purpose cease then the easement may have been extinguished. This can be seen when the dominant land i.e the benefitting land is developed and the easement was only ever granted for a specific purpose or timeframe.

A Deed of Easement is an essential legal document that can ensure long-term, enforceable rights over land. Whether you are buying, selling or developing land, it’s important to carefully consider the rights required for full use and enjoyment of the land.

Consulting a property solicitor is a wise step to protect your interests and to avoid potential future issues. Done, properly, a Deed of Easement provides clarity, security and peace of mind for all involved.

If you have any questions regarding an easement, please do not hesitate to get in touch with one of our friendly property solicitors.