An easement is a right benefiting one parcel of land (known as the dominant tenement) that permits the rightful users (not necessarily just the owner) of that land to access a neighbouring parcel of land (known as the servient tenement). There are several examples of the most commonly used and well known easements:
- one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath or over the land of one or more neighbouring properties
- the private right of way or a shared driveway
Other easements may include a right to light, right of support, right to access a neighbour’s land to carry out building maintenance or utility repairs etc.
An easement may be created in a number of ways. Usually, this is by express grant. A Deed of Grant sets out the terms of the easement, or the grant may take the form of a clause in a conveyancing deed or a transfer deed.
An easement may be created of necessity or by prescription. Of necessity means it may have been created over a road, track or path leading to it if that route is the only means of access between the public highway and that parcel of land provided it meets certain criteria. An easement by prescription happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of at least 20 years.
An easement is very difficult to extinguish and should be thought of as existing forever. It may be possible to vary the right of way along a new route. This has to be negotiated with the owner(s) of the dominant tenement(s) before a Deed of Variation can be drawn up by a solicitor.
Difficulties can arise where the express Deed of Grant does not provide for the repair of the private right of way. If the right of way falls into disrepair, then the user may repair the way but must be careful not to improve the way as it is not his land to develop.
If a dispute arises over a private right of way, the first thing to do is to check your Land Registry property title and/or conveyancing deeds to confirm that there is an easement and to check the terms of your right of way. With luck (but this is not always the case) there will be an accurate description of the extent, shape and form of the right of way, and a statement of who is responsible for its maintenance.
Next, consider whether your rights are being infringed and the amount of inconvenience you are suffering. Try talking to your neighbour to find out what their point of view is and then see if you can negotiate a settlement that accommodates both your needs.
If this fails, or if your neighbour is unapproachable in the first instance, and you need professional help, then consider your requirements before seeking the appropriate professional help:
- If you need someone to tell you where and how wide the right of way is, you need a chartered land surveyor
- If you need someone to interpret the legal terms of the grant of easement, or you need a declaration of your right of way and an order preventing your neighbour obstructing you from using it or an injunction to stop a neighbour trespassing on your land, you need a solicitor, and this is where we can help
- If you have a dispute with a neighbour over party walls, or need to carry out works to or near a party wall, you may need a party wall surveyor to prepare a party wall agreement
The Party Wall etc. Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. A building owner proposing to start work covered by the Act must give adjoining owners notice of their intentions in the way set down in the Act. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes, and we can advise either party as to the legal obligations and technicalities of the dispute.
It is important to note that the Act is separate from obtaining planning permission or building regulations approval.
The main types of party walls are:
- a wall that stands on the lands of two (or more) owners and forms part of a building - this wall can be part of one building only or separate buildings belonging to different owners
- a wall that stands on the lands of two owners but does not form part of a building, such as a garden wall but not including timber fences
- a wall that is on one owner’s land but is used by two (or more) owners to separate their buildings
The Department for Communities and Local Government has produced an explanatory booklet on the Party Wall Act.
You will usually only need to use a Party Wall surveyor to advise on a party wall dispute, however if you do require legal advice, you can contact us on the details provided.