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What is an Easement and why might you need one if you are a homeowner?

An Easement is a legal right belonging to one piece of land which is exercisable over another neighbouring piece of land.  

For example, if you buy a house that has a shared driveway, then part of the area you will need to drive over to access your house might actually belong to the neighbour.  You will therefore need a legal right to cross over their part of the driveway.

These types of rights are attached to the land and are not personal to the homeowner. So, in our driveway example, it is not just the homeowner who can cross over the neighbour’s driveway but also visitors, tenants (if the property is rented) and even the postman! If someone else buys your house, they will take over use of the right as it remains tied to the property.

When you buy a property you might find that it already has rights over a neighbouring piece of land or that the neighbouring land owner has rights exercisable over your land – and the need for a right of way is usually fairly clear. There are other required rights that might not be so obvious – such as rights to use any private underground drains or pipes.  It is part of your solicitor’s job to ensure that the property has all the rights you need to allow you to use your property in the way that you would expect to. Your solicitor should also advise you of any rights that your neighbour will have over your property.

If your property doesn't have all of the rights that it needs, this could cause problems in the future. Ultimately, missing rights could reduce a house’s value, or make it difficult to sell or to mortgage. If this is the case, you will need a solicitor to help you negotiate with the neighbour to give you the rights you need. Your neighbour is likely to ask for financial compensation in return for granting you rights. It is therefore important to make these checks before buying the property.

So when you are buying a property, what rights should you look out for?

This will depend on the type of property and the features of the surrounding land. Again, this is why it is important to obtain specialist legal advice. However, here are a few examples:

  • A right of way over the roads leading to your propertyIf the road leading to the boundary of your property is maintained by the Highways Agency, you will not need a specific right as you will have a right as a general member of the public to use the road. However, not all roads are adopted by the Council (local authority) and your property might be accessed via a private road. If this is the case, you will need a right of way over that private road.  In addition, you should check who owns the road and whether you have an obligation to contribute to the cost of maintaining it. If it is in a poor condition, this may be a sign that the owner is not complying with maintenance obligations and this could be a problem for the users going forward.
  • A right to use the pipes, wires and drains that lead to your property It is often the case that the pipes, wires and drains allowing services such as electricity and water to get to your house and sewerage to leave the house will cross land belonging to other people. You will need a right to use these services and the service media that they pass through. You would also want a right to access the neighbouring land in order to maintain the service media if they needed repair.
  • A right to light or airThis right is often excluded by developers on modern estates as it gives you the right to object to development on neighbouring land if it blocks light or air to your property. This is usually more relevant in built-up areas and this is a complex area of law.
  • A right of access to neighbouring properties to allow you to maintain your own If your house abuts the boundary of your land, you may need access to your neighbour’s land to maintain your house, carry out repairs or even clean the windows.
  • A right of structural supportThis is mostly relevant to terraced properties where two houses might share a wall. You would not want your neighbour to be able to demolish their property leaving your house unsupported or structurally vulnerable.

When you are buying a house you might find that these rights are not specifically listed in the paperwork provided by the seller, especially if you are buying an older property. This is not always a problem, as rights of this kind can arise through use over a sustained period of time (usually 20 years or more) or can be implied by legislation. Your solicitor should advise you whether there are any essential rights missing and what can be done to address the situation if there are.

In addition, Easements have to be created in specific ways to be legally enforceable. It is a requirement that the two pieces of land concerned must be owned by different people. It must also be a type of right which is capable of being an Easement. For example, the right to a “good view” can not be an Easement.

These can be complicated legal points and if you are looking to enforce a right over a neighbour’s land you should seek advice from a solicitor.

This article was written by Samantha Elliott, Solicitor at Wansbroughs Solicitors

Published on 16th January 2018

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