Easement dispute

Whether you are a developer or landowner seeking to establish rights of access, services, support or drainage over neighbouring land, or you are a property owner whose land is being used without authority and who wishes to resist or challenge a claimed easement, our property disputes solicitors have extensive experience advising on all aspects of disputes concerning easements.

What is an easement?

An easement is a right attached to one piece of land (known as the dominant tenement) that allows its owner to use the land of another (known as the servient tenement) in a defined way. An easement is a proprietary right: it attaches to the land itself rather than to its current owner, and it will bind successive owners of both parcels of land.

Easements arise in many contexts but are particularly significant in the context of development. Before a development can proceed, a developer may need to secure rights of access to the site over third-party land, rights to run utility services such as water, electricity, gas or fibre through neighbouring land, rights of support from adjoining structures, and drainage rights to allow surface and foul water to pass through neighbouring land. Identifying at the outset which rights exist, which need to be granted and how any gaps can be filled is a critical part of any development programme.

Disputes about easements arise in a wide variety of circumstances:

developers who discover that an existing access right does not extend to vehicular use;
utility apparatus has been laid through neighbouring land without authority;
a landowner whose support rights are threatened by proposed demolition work on an adjoining site;
property owners who wish to challenge a neighbour’s claim to a right of way across their land;
a party whose title appears to include an easement, whose scope or very existence is contested.

You will find answers to common questions around boundary disputes in the FAQs at the bottom of this page.

What does an easement dispute solicitor do?

Easement disputes require careful analysis of title documents, conveyancing history and physical evidence on the ground. Our property disputes team has extensive experience advising at all stages of easement disputes, from reviewing title documents and advising on whether an easement exists and its likely scope, to negotiating with the other party, pursuing or defending injunction applications, and taking a claim to trial where necessary. The team’s ethos is simple: solve the problem.

As with all property disputes, early advice is essential. A landowner or developer who takes advice at the first sign of a problem is far better placed to protect their position than one who waits until the dispute has escalated.

Our aim is always to resolve the dispute without the need for court intervention, using negotiation, mediation, expert determination and other forms of alternative dispute resolution. Easement disputes can be costly and time-consuming (especially if taken all the way to trial), and in many cases a pragmatic solution can be achieved without litigation. Where court proceedings are unavoidable, however, the property disputes team has the expertise to take a claim through to trial.

Our easement dispute services cover:

Rights of way

Rights of way are the most commonly disputed category of easement and give rise to a wide range of arguments: whether the right exists at all, the route over which it runs, the purposes for which it may be used, whether it extends to vehicular as well as pedestrian use, and whether the party exercising the right has exceeded the scope of the right (excessive use).

Rights of support

Every landowner is entitled to have their land supported in its natural state by the surrounding land. A building however, is not a natural right and must be acquired as an easement, either by express grant, implication or prescription (which in this context generally requires 20 years of acquiescence in the support provided).

If a developer proposes to demolish or substantially alter a structure that provides support to a neighbouring building, imposing procedural requirements and obligations are met. Where support rights are at risk, early engagement (i.e. before works begin) is advisable. Read more here (LINK TO ARTICLE – ref FAQ4).

Rights of services

Services commonly covered include water, foul and surface drainage, electricity, gas, telecommunications and fibre. Rights of services can arise by express grant, implication or prescription as well as under statute.

Disputes about rights of services most commonly arise where apparatus has been installed without any formal grant, where the scope of an existing right is insufficient to accommodate an upgraded or extended installation, or where the servient owner objects to further connections being made into apparatus that already runs through their land. The question of who bears the cost of repair and maintenance of shared service infrastructure is also a frequent source of contention.

Drainage rights

Drainage rights overlap to some extent with rights of services but are sufficiently distinct in practice to warrant separate consideration, particularly given the regulatory framework that governs public sewers and water management. Understanding the interaction between private and public drainage rights is an important part of any development drainage analysis as different rules apply.

Why choose B P Collins as your easement dispute solicitors?

With over 60 years of experience, we’re consistently ranked by Chambers UK and The Legal 500 for the strength of our property disputes practice. Our solicitors have helped hundreds of individuals, developers and companies navigate their property rights with confidence and clarity.

As with most disputes, early advice can frequently result in a swift outcome, avoiding unnecessary escalation and protecting your position before it becomes more difficult to assert.

Contact our easement dispute solicitors today

For further information or advice please contact our specialist solicitors. Our teams are based in London, Thame and Gerrards Cross, and can be contacted on 01753 889995 or at enquiries@bpcollins.co.uk.

Easement dispute FAQs

How does an easement arise?

An easement can arise in four main ways:

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.
By implication – where the circumstances of the transaction are such that an easement must have been intended by the parties even though it is not expressly mentioned. The most well-established ground of implication is necessity: if a parcel of land would be entirely landlocked without a right of access over the seller’s retained land, the law will imply a right of way by necessity.
By 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.
By statute – certain easements can be created, or deemed to exist, by operation of statute, including rights of access under the Access to Neighbouring Land Act 1992 and rights arising under various utilities and infrastructure legislation.

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.

What can a right of way be used for?

When developing a property, securing sufficient rights of access is often a pre-condition to a scheme proceeding at all. A developer will need to consider not only whether an access right exists on the title but whether it is wide enough in scope to accommodate the proposed development. Where the right was expressly granted, the terms of the grant will define its scope and will be construed by the court in accordance with ordinary principles of contractual interpretation. Where the right arose by prescription, its scope will be defined by the nature and extent of the use that has been made of it over the prescriptive period – a prescriptive right used historically for agricultural traffic cannot automatically be extended to use by a substantially greater volume of commercial vehicles.

What is a right of services?

A right of services is an easement that entitles the owner of the dominant land to lay, maintain and use pipes, cables, conduits or other apparatus through, over or under the servient land for the purpose of supplying utilities to the dominant land. Services commonly covered include: water, foul and surface drainage, electricity, gas, telecommunications and fibre.

Why do rights of services matter for development?

Establishing adequate service connections is a practical necessity before a development can be occupied. The route that service connections must take will often cross land in third-party ownership, and the question of whether a legal right exists to run those connections (and to enter the neighbouring land for the purposes of inspection, repair and maintenance) is one that must be resolved before construction begins rather than after completion. Rights of services can arise by express grant, implication or prescription. They can also arise under statute: the relevant utility companies and statutory undertakers have their own powers of entry and installation under sector-specific legislation, and an understanding of the interaction between those statutory powers and private easement rights is important. Where no right exists and a consensual grant cannot be agreed, a developer may need to consider alternative routes or, in limited circumstances, whether the Access to Neighbouring Land Act 1992 or other statutory mechanisms can assist.

What is the difference between private drainage rights vs public sewer connections?

Public sewer connections are governed by the Water Industry Act 1991 and the regime administered by water and sewerage companies. Where a private drain connects to a public sewer, different rules apply and the relevant water company may have its own rights of access.

Can an easement be lost or extinguished?

Yes, in certain circumstances. An easement can be extinguished in the following main ways.

Unity of ownership and possession – if the dominant and servient land come into the ownership and possession of the same person, the easement is extinguished by merger, as a person cannot hold an easement over their own land. If the land is subsequently separated again, a new easement will need to be created; the old one cannot be revived.
Express release – the dominant owner can release an easement by executing a deed of release in favour of the servient owner. An agreement to release an easement in exchange for a payment or other consideration is a common way of resolving easement disputes without litigation.
Abandonment – an easement can be extinguished by abandonment if the dominant owner demonstrates a fixed intention never to use the right again. However, the courts set a high bar: mere non-use, even over a long period, is not in itself sufficient to establish abandonment. There must be evidence of a positive intention to give up the right permanently.
Statutory extinguishment – certain statutes provide mechanisms for the extinguishment of easements, including in the context of compulsory purchase. The Upper Tribunal also has jurisdiction to modify or extinguish certain easements under section 84 of the Law of Property Act 1925, though this jurisdiction is more commonly exercised in relation to restrictive covenants.

What can I do if my easement is being breached, obstructed or interfered with?

Where a servient owner obstructs or interferes with the exercise of a valid easement, the dominant owner has a cause of action in nuisance and may also have a claim in trespass. The remedies available include:

An injunction requiring the servient owner to remove the obstruction and to refrain from further interference – this is the primary remedy in most easement disputes and is available on an interim basis (pending trial) as well as at trial;
Damages – either as an alternative to an injunction or in addition to it, to compensate the dominant owner for loss suffered as a result of the obstruction;
A declaration – a formal declaration from the court as to the existence and scope of the easement, which can be valuable in establishing the parties’ respective rights for the future even where no immediate obstruction exists.

Where an obstruction has recently been erected (for example, a gate or fence blocking a right of way, or a new structure built over drainage apparatus) it is important to act promptly. A dominant owner who allows an obstruction to remain unchallenged for a significant period may find that the servient owner relies on that delay as evidence of acquiescence or abandonment. Before commencing proceedings, it is usually sensible to write to the servient owner putting them on notice of the claimed easement and requiring the obstruction to be removed within a defined period.

What can I do if someone claims an easement over my land that I dispute?

A landowner who disputes a claimed easement over their land has several options, depending on the nature of the claim and the stage at which the dispute arises. Where the claim is based on prescription (long use without permission), the servient owner may be able to defeat the claim by demonstrating that the use was not as of right throughout the prescriptive period: for example, that the use was permissive (i.e. with the servient owner’s express or implied consent), that it was by force or in secret, or that it was interrupted during the period. A servient owner who becomes aware that a neighbour is using their land in a way that could give rise to a prescriptive claim should take steps to interrupt that use without delay – ideally by granting a formal written licence (which makes the use permissive and therefore not as of right) or by obstructing the use for the period required to interrupt the prescriptive period. Where the claim is based on an express grant or implication, the servient owner may dispute the existence or scope of the right by reference to the relevant title documents and conveyancing history.

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. Title insurance is most commonly used in transactional contexts where a title defect is identified but the parties want to proceed rather than resolve the underlying issue before completion. If an easement dispute has already arisen, the right course is to take legal advice on the strength of your position before considering whether insurance is a realistic option at all.

Can an easement be enforced?

Yes, depending on the nature of the claim and the stage at which the dispute arises.

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