How can I claim easement?

What is easement?

An easement gives a landowner the right to make use of another nearby piece of land for the benefit of his own land. When you buy a piece of land or property, you need to consider the rights the owner of the rest of the land or property may have over your part or the rights you may have over his part.

In Re: Ellenborough Park [1956] Ch. 131 the court set out the four essential elements of an easement:

  • there must be a dominant and servient piece of land (the dominant land is that owned by the owner of the right; the servient land bears the burden of the easement);
  • the easement must accommodate the dominant tenement (ie, there must be some direct beneficial impact on the land itself – it can’t just be for the personal benefit of the owner);
  • the dominant and servient owners must be different people;
  • the right must be capable of forming the subject matter of a grant.

Capable of forming the subject matter of a grant

An easement is a registrable property right so must be capable of being granted by deed, even if it hasn’t been so granted. This means:

  • the easement must be clearly defined;
  • both parties must have capacity to grant and acquire the legal right;
  • the easement should not generally involve the servient owner having to spend any money;
  • the easement can’t be so far-reaching that it puts the servient owner out of possession of his land.

Registered and unregistered land

If the land is registered the burden of an easement will be registered in the charges register of land over which it is granted. The registration requirements for a legal easement are set out in para 7 of Sch 2 to the Land Registration Act 2002.

If the land is unregistered, the grant of the easement will not trigger registration. The owner of the right to the easement should lodge a caution at the Land Registry against first registration of the title. If they do this, the Land Registry will inform them as soon as an application for first registration is made. They can then ensure that the easement is properly noted upon first registration and, if not, they can alert the Land Registry.

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For more information on:

  • Obtaining an easement
  • By grant
  • By reservation
  • By necessity
  • By implication
  • By prescription
  • Access to neighbouring land
  • A right to light A right to light is an easement that gives a landowner the right to receive light through defined apertures (eg, windows) in buildings on his or her land. A right to light like other easements can be acquired by express grant or prescription.