How can I Claim Easement?

What is easement?

Easement is a right enjoyed over specific part of land for the benefit of another piece of land. When you buy a part of the land or property, it is necessary to consider the rights of the owner of the rest of the land or property which he may have over your part or the rights you may have over his part. Namely these are the rights reserved in favour of the Seller over the property being sold or the rights granted to the buyer over the property retained by the Seller.

Effect on registered and unregistered land

It is important to check whether the land itself is registered or unregistered. Disregarding any transitional provisions if the land is registered the burden of an easement will be registered in the charges register of land over which it is granted. If the land is unregistered it is important to look out for a day when that land is registered as the grant of the easement will not trigger registration. You must register   easement after the first registration of the land took place. Existing legal easement may have an overriding effect on first registration. In any case you should lodge a caution at land registry against first registration of the title if the land is unregistered. The benefit of the easement will be registered in the Property register of the land being purchased if the land is unregistered this benefit will trigger first registration. The rules seem a bit complicated but it is important to remember that there is a difference between registered land and unregistered land procedures in relation to the purchase of a part of one or another’s title.

Example when the Land is being purchased

If the land being purchased is part of registered title the burden of easement will be registered on charges register of the part being purchased and the benefit is registered on property register of the  part retained, however if the land being purchased is part of unregister title the purchase will trigger first registration of the title, the burden of the easement will be register on charges register of the  part being purchased but the benefit of the burden  remains unregistered until the land becomes registered.

How can you claim easement?

By Express grant or Reservation of a legal easement

This can be done by a deed forever or for a fixed period. There is a maximum perpetuity period 80 years for easements which do not take effect immediately.

By a Deed section 52(1) Law of Property Act 1925

This is a formal signed legal document which constitutes a proof of an agreement.

By the operation of section 62 of the Law of Property Act 1925

This section says that the conveyance of the land includes conveyance of the easement attached to that land. This applies to the Buyer only and where there is a separate occupation in two pieces of land on that property concerned with the benefit and the burden. It also applies to quasi-easements which are not apparent on an inspection.

By Implied right or reservation

Easement of necessity

It must be absolutely necessary to attach the easement to that particular land  for  the use (not just enjoyment) of particular  property as it would not be possible to use the land without it.  For instance otherwise that land would be landlocked.

Intended easement                                                                                                                           

This easement arises if there is a common intention between the parties to use the property in a particular way, in some definite and particular manor which is specific and not merely general.

According to the rule in Wheeldon v Burrows (1879) case

This rule explains that you will be entitled to an easement if you can prove continuous and apparent use of the land (which is discoverable upon inspection of the property) which was necessary for the reasonable enjoyment of the property and this was in use at the time of the sale.

Easements by prescription

Easement may be claimed after a long use of the land for 20 years or more. This use must be enjoyed as a right which was used without force, secrecy and permission. In other words, if there was a permission to use the land an easement cannot be claimed in this case.

Access to neighbouring land

If you need access to neighbouring land in order to carry out substantial repair and maintenance work on your property and your neighbour is refusing to cooperate you can apply for a court order for this access to be granted to you if you can prove that the work is necessary to preserve your property and there is no other way without granting the access to it (Access to Neighbouring Land Act 1992).

A right to light

This can be granted by Deed or by Prescription if it can be proven that a building had 20 continuous exposures to light. It is possible to serve q light obstruction notice under the Rights of Light Act 1959. This would be registered as a local land charge. A notice would then be send to the owner of the building and he would have one year to respond and object to that notice if the owner does not object to this then he is deemed to accept that light obstruction. The court are prepared to order an injunction and to remove the  building which is causing an infringement of the right to light, it is therefore essential to send the light obstruction notice if there is no evidence of a deed or a right to light by prescription. The owner of the land will have a right to go to court on the ground of actionable interference with its right to light. However he only has one year to do so.