B P Collins’ property disputes team takes a closer look at easements – what they are, how they arise and why they matter. From rights of way to drainage, we answer the key questions that landowners, property owners and developers regularly ask us, helping you to understand your position.
1. What is an easement?
An easement is a legal right connected to one parcel of land (the dominant tenement) that allows its owner to use another parcel (the servient land) in a specific way. It is a proprietary right, meaning it attaches to the land itself rather than to a particular owner. It continues to affect future owners of both pieces of land after the originals parties have sold.
Easements are especially important in developments. A developer may need rights of access across neighbouring land, permission to install utilities such as water, electricity, gas or fibre, rights of structural support, and/or drainage rights. Identifying what rights already exist, what rights are missing and how to secure them, is essential before starting a project.
Disputes can arise in many situations, such as when:
- an access right does not allow vehicular use as expected;
- utilities have been installed without permission;
- construction threatens structural support from neighbouring land;
- a landowner challenges a claimed right of way;
- the existence or extent of a claimed easement is unclear.
2. How does an easement arise?
Easements can arise by:
- Express grant – where the easement is created in a deed, transfer or conveyance in express terms. This is the most straightforward route, and the terms of the grant will define its scope. Where a landowner sells part of their land and expressly reserves an easement over the land sold for the benefit of the land retained, the reservation will bind the buyer and their successors in title.
- Implication – sometimes, even if not written down, the circumstances suggest that a right must have been intended. A common example is necessity: if land would otherwise have no access, the law may imply a right of way.
- Prescription – where the easement has been exercised openly, without force, without secrecy and without the permission of the servient owner for a period of 20 years or more.
- Statute – some easements are created or recognised by legislation, including rights of access or rights linked to utilities and infrastructure.
3. What is a right of way?
A right of way is an easement that entitles the owner of the dominant land to pass over the servient land along a defined route.
In a development, access is often essential for any project. Developers must check not only whether a right exists but whether it is suitable for the intended use. For example, a route previously used for light agricultural traffic may not be adequate for heavy commercial vehicles. If the right is written down, its scope depends on the wording. If it arises through long term use, its extent is limited to how it has historically been used.
4. What is a right of services?
A right of services allows a landowner to install and maintain pipes, cables, or similar equipment across neighbouring land to supply utilities. This may include water, drainage, electricity, gas and telecommunications.
It matters particularly in a development, which cannot function without proper utility connections. These often need to cross land owned by others, so it is crucial to ensure that legal rights exist for installation, access and maintenance. These rights may arise through express agreement, implication, prescription. They can also arise under statute whereby utility providers may also have their powers of entry and installation under sector-specific legislation. If no agreement can be reached, developers may need to explore alternative routes or rely on limited statutory options.
5. What are easement rights of support?
A right of support is an easement that entitles the owner of the dominant land or structure to have that land or structure physically supported by the servient land or an adjoining structure.
For land in its natural state, this right exists automatically. However, buildings do not have an automatic right of support and must acquire it as an easement, either by express grant, implication or prescription. These rights of support are particularly important in built-up areas where properties are built in close proximity or share structural elements.
6. What is a drainage right?
A drainage right allows water, whether surface or waste, to pass through pipes or channels across neighbouring land.
Although similar to rights of services, drainage has its own importance, especially due to regulatory requirements relating to public sewers and water management. These rights can arise in the same ways as other easements: express grant, implication, prescription, or statute.
If acquired through long use, the right is limited to the extent of that use. For instance, a system serving a single house cannot automatically be expanded to serve a large development.
Connections to public sewers are governed by specific legislation and managed by water companies, which may also have access rights.
7. Can an easement be lost or brought to an end?
Yes, easements can be extinguished in several ways:
- Unity of ownership – if one person owns and occupies both the dominant and servient land, the easement ends because a person cannot hold an easement over their own land. If the land is later divided again, a new easement must be created.
- Express release – the dominant owner can release an easement by executing a deed of release in favour of the servient owner. This is often done as part of a negotiated settlement.
- Abandonment – an easement may end if there is clear evidence that the dominant owner intended to give it up permanently. However, simply not using it for a long time is not enough. The bar for abandonment is extremely high.
- Statutory removal – certain statutes allow easements to be modified or extinguished, particularly in cases such as compulsory purchase or specific Upper Tribunal decisions.
8. Does title insurance cover easement disputes?
Title insurance can provide cover for certain easement risks, but it is not a universal solution and its scope depends entirely on the specific policy. Most policies will cover undisclosed or unregistered easements that were not revealed by the title register or picked up during the investigation of title. For example, a right that a third party subsequently asserts against you.
Policies will also commonly cover the risk that an easement you rely on turns out to be defective or unenforceable, leaving the property without adequate access or services.
What title insurance will not do is resolve a known dispute. Insurers will not provide cover for risks that are already live at the date of the policy. It covers unknown risk, not known problems – If a dispute has already arisen, cover will rarely be available on acceptable terms.
9. Can a breach of the terms of an easement be enforced?
Yes. The owner of the dominant land (the land that benefits from the easement) has a range of remedies if the terms of the easement are breached, whether the breach is committed by the owner of the servient land (over which the right is exercised) or by the dominant owner exceeding the scope of the right granted.
The most common remedy is an injunction. Where the servient owner is obstructing the exercise of an easement – blocking a right of way, or interfering with services through a pipe – the court may grant an injunction requiring the obstruction to be removed and restraining further interference. Conversely, where the dominant owner is exceeding the scope of the right – using a footpath as a vehicular access, or putting an easement to a use it was never granted for – the servient owner can seek an injunction restraining the excessive use.
Damages are also available, either in addition to or instead of an injunction, as well self-help sometimes being possible – the dominant owner may be entitled to abate an obstruction, for example by removing a gate that has been padlocked across a right of way.
10. What is a right of way?
A right of way is an easement that entitles the owner of the dominant land to pass over the servient land along a defined route.
Self-help is a remedy that should be approached with great caution. It is easy to overstep and the party seeking to abate the issue often hinders their case, rather than resolving the issue.
The right approach in almost every case is to take legal advice early.
The property disputes team wants to get to the heart of the issue, understanding the objective and managing the dispute to analyse the risks and achieve a resolution as swiftly, efficiently and as cost effectively as possible. The team’s ethos is simple: solve the problem. To contact the team for further information and advice please email enquiries@bpcollins.co.uk or call 01753 889995.
