Development sites and the thorny issue of rights of way and easements

The thorny issue of rights of way and easements is often highlighted when a landowner complains about ramblers wandering over their land, but for landowners who have not undertaken proper due diligence, this might be the least of their worries.

But what is an easement?

An easement is a right one piece of land, the ‘dominant’, has over another piece of land, the ‘servient’. These rights apply when the pieces of land have different owners, typically relevant when the owner of the dominant land has a right of way to access their property through the servient land.

Easements and land development

When a developer is seeking to purchase a piece of land, they must understand if the land is subject to any easements, which could have a significant impact on what can be done with the site.

Most easements are permanent and can only be ended by the owner of the dominant land. It doesn’t matter if the right is not used for a long time, the easement does still not lapse. The easement applies to the land, not any particular owner or indeed developer.

The landowners might have not been involved in the decision to grant an easement or right of way, but they are still be bound by it and dependant on whether the land is registered or not, together with how the easement occurred.

It is an area we regularly help potential buyers and landowners with, who must look deeper than the Land Register entry, as an easement may have arisen over many years and sometimes few people are aware of its existence.

Easements are not always obvious to a developer. When the dominant landowner can prove they have openly used their right over servient land for 20 years or more without permission and unchallenged, they will continue to benefit from what are known as prescriptive rights.

If a developer needs access to a development, an easement may be the answer, but it must not be used excessively. If it was and this use increased the burden on the servient land, the landowner may raise a claim for trespass.

The good, the bad and the ugly of easements

Easements have pros and cons for developers, with the ability to significantly impact how they use a site, with the potential to interrupt or completely halt work if they are ignored or abused.

The worst and most ugly outcome is the risk of injunctive proceedings, which typically occur when a developer fails to act reasonably regarding an easement, whether they are aware of it or not.

When an offer of damages doesn’t solve the problem, an injunction could be awarded that interrupts work on site, which even if it’s only for a relatively short period, could prove financially disastrous for the project and ultimately the developer.

If an easement only comes to light once the development has begun, any interference with it, must be handled very carefully and legal advice sought at the earliest opportunity.

To remove the risk of an injunction, the developers should try to negotiate with the owner of the dominant land to agree a course of action. But again, this should only be attempted after taking legal advice, particularly concerning the impact such contact may have on indemnity insurance.

An agreement might allow the easement to be varied or ‘paused’ while development takes place, with a joint plan designed to minimise the impact of the development and associated works on the spirit of the easement.

Different Types of Easement

Easements can be officially declared or become established over a period of time through repeated use and include, but are not limited to these types:

Express Grant – Detailed in a property’s deeds and generally follows when an individual sells a part of their property, such as adjoining land, but wants to maintain a right of way for access or to perform maintenance.

Prescriptive Rights – A person overtly using an easement for more than 20 years and going unchallenged, may have that easement granted legally.

Implied Rights – Difficult to claim and not mentioned in the deeds, but generally occurs when part of a property is sold and crossing this land is the only way to access land that has not been sold.

There is a lot to consider for developers who want to mitigate the impact of easements and rights of way on land they have purchased, or take advantage of them. Considerations include:

• Comprehensive due diligence will be needed, including physical inspections of the site to check for any signs of easements, such as footpaths worn across land and to gauge the full practical impact of any known easements
• Support the due diligence with a full record of plans, photographs and deeds
• Seek legal advice to fully understand the implications of any evidence, as a developer’s view of what is a ‘reasonable’ easement may not be the same as the legal definition
• Just because a right of way appears unused, do not assume it has been abandoned
• Developers should adapt the site use to fit the scope of any easements rather than ignore them
• Ensure any required easements are enforceable and broad enough to meet the current and future needs of the development

The issue of rights of way or easements may be thorny for developers, but still no reason to pass up the opportunity to purchase a good development site. The project just needs to be approached with open eyes and the advice of an experienced real estate lawyer, like those found at Newmanor Law.

If you are considering acquiring land to develop and would like to discuss easements and rights of way, please speak Karen Mason on +44 (0)20 7464 4081 or email karen.mason@newmanor.com