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.

Obtaining an easement

By grant

This is where the owner of the servient land gives the easement to the owner of the dominant tenement. An expressly granted easement can be created by deed or by a will (so must be in writing) and, in respect of registered land, completed by registration. A grant is assumed to be forever unless noted otherwise in the terms of the grant.

By reservation

This is where one party expressly reserves the right to retain an easement in property that is being transferred. It must be created by deed or will.

By necessity

It must be absolutely necessary to attach the easement to that particular land for the use (not just enjoyment) of the particular property. For instance, otherwise that land would be landlocked.

By implication

If the circumstances surrounding a grant of property show the grantor must have meant that a party keep or get an easement, a court can infer an easement even though the easement was not expressed.

By prescription

An 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 to carry out 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. You’ll need to 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

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.