What is an Easement?

An easement is a right giving a benefit to one property called the “Dominant Tenement” over another property called the “Servient Tenement”.

The use of the word “Dominant” and “Servient” gives a clear indication as to the nature of the relationship between the two properties.

In this article, Senior Associate Linda Chew covers some questions our residential property team are asked when it comes to easements.

Can an easement exist in its own right separately from either a Dominant Tenement or a Servient Tenement?

No. It has to be attached to both the Dominant and Servient properties benefiting one and burdening the other. Easements are “incorporeal hereditaments” i.e., they have no substance, but they do exist as legal entities when properly created.

What are examples of easements?

Some common types of easements include:

1. A right of way providing access over one property – the Servient Tenement “ST”- to another – the Dominant Tenement “DT”.
2. A right to run a drain or service cables for instance across an ST to a DT to serve that property.
3. A right of support giving the DT the right to have buildings on his land supported by those on the ST.

Can an easement exist between two properties owned by the same person or legal entity?

No. It is an essential characteristic of an easement that the Dominant and Servient tenements are separately owned.

How is an easement created?

Usually in modern residential conveyancing by specific grant be deed, for instance when a new property is carved out of a residential estate.

Easements can also be created by prescription which is long uninterrupted or undisputed use enjoyed as of right, rather than as a result of force, secrecy or permission of the owner of the land subject to the right. The rather archaic legal language is “nec vi, nec clam, nec precario”. The alternative formulation offered, for instance, by Lord Hoffmann, ‘not by force, nor stealth, nor the licence of the owner’ means without force, secrecy or permission. The time required is usually a minimum of 20 years.

There is another way in which an easement can be created in rather unusual circumstances. If, for instance, you were to acquire a property surrounded entirely by another such that you had no access to it, you could have a “way of necessity”.

Who pays for the upkeep of a right which is an easement?

The general rule is that if you have the benefit of an easement, you also have the burden.

This applies to all easements, but a simple example is a right of way. If you enjoy a right of way over someone else’s property, you would be expected to contribute to the upkeep of it. The obligation may be spelt out in the deed, if any, granting the right and/or it may be a fair proportion according to use. If you are one of four properties having the use of a driveway you would probably pay one quarter of the cost of upkeep. On the other hand, if your access to a residential property is over a farm track used for agricultural purposes you contribution would in all likelihood be less than that of the farmer.

How do you know the extent of the right?

If granted by deed the precise extent would be spelt out but if acquired by prescription it may not be quite so clear. However, all easements are construed restrictively i.e. you would only have the minimum required. Thus, a right of way on foot does not extend to use by a car or on horseback and a use for domestic purposes does not extend to use by commercial vehicles.

Easement Case study Example

John owns a property, No 9 Any Street. He has a piece of land to one side on which he builds another house, No 10 Any Street. The drains serving No 10 run across the back of No 9 and thence to the public mains in the street.

Whilst the two houses remain in John’s ownership no easement can exist or will be required.

If John decides to sell No 10 to a third-party, he will have to grant an easement for the drains to the buyer in the transfer. The terms would be set out in the transfer.

If on the other hand John decides to keep No 10 and to sell No 9, he will need in the transfer of No 9 to reserve a right – an easement – for the drainage in favour of No 10. Again, the terms would be set out in the transfer to the buyer.

The same principal applies regardless of the nature of the easement – for a footpath across the back of a property or support for a wall serving both properties for instance.

A cautionary note

Easements are very important to the full enjoyment and use of a property. Some are not immediately obvious – drains, service pipes, support etc – so you need to make sure that the title documents are clear about what you are getting and if something is missing it needs to be addressed before you commit to a purchase.

How Pinney Talfourd can help

If you are selling or buying a property and seeking some legal assistance, our team are here to assist you. Please call 01708 511 000 or email residentialproperty@pinneytalfourd.co.uk.