Landlord Right of Way and Easement Guide 2026 — Types, Creation, Prescription, BTL Impact and Dispute Resolution

Types of easement and methods of creation — from express grant to prescription

The four methods of creating easements have very different evidential and registration requirements — understanding which method applies determines the easement's legal status:

• Types of easement most relevant to landlords: (a) Right of way — the most common easement in residential property contexts. A right of way permits the owner of the dominant tenement (and their tenants) to pass over the servient tenement via a defined route. Rights of way can be: pedestrian (footpath only); vehicular (including pedestrian and vehicles — important for parking access); or purpose-specific (e.g., right to pass with agricultural machinery). In a BTL context, the most common right of way issues arise where: (i) the property is accessed via a shared private driveway that crosses a neighbour's or third party's land — the right to use this driveway must be clearly established in the title register; (ii) the rear garden is only accessible through a shared alleyway — the right of way over the alleyway must be registered; (iii) parking is in a separate allocated space that requires crossing another's land. Where a property is sold with parking, the right to access the parking must be checked in the title register and conveyance documents; (b) Right of drainage and services — a right to have drains, sewers, and service pipes (gas; electricity; water; telecommunications) running through another's land. Many older properties have drains and pipes that cross neighbouring land without formal registration — this creates a risk that the owner of the neighbouring land can object to or interfere with the services at some future point, or that a future purchaser of the neighbour's land will not be bound by the unregistered drainage right. Where drains are public sewers (adopted by the sewerage undertaker), the right is statutory rather than easement-based — public sewers can be checked on the drainage and water search (CON29DW); (c) Right of support — a structural right for a building to receive support from an adjoining structure or from the ground beneath. Relevant for: end-of-terrace and semi-detached properties (where the building structure depends on the neighbouring building for lateral support); basement conversions (where excavation might undermine the neighbouring property); and roof terraces (where the structure depends on the adjoining building for support at the junction). The right of support can arise by prescription (long enjoyment) or by express grant; (d) Rights of light — a right to receive natural daylight through defined windows or openings in a building. An easement of light can be acquired by 20 years' uninterrupted enjoyment under the Prescription Act 1832. Rights of light are legally distinct from planning rights — a new development may have planning permission but still infringe a neighbour's established right of light. Rights of light are most relevant to landlords when a neighbouring development blocks or significantly reduces natural light to the letting property — potentially reducing its value and attractiveness to tenants
• Methods of creating easements — express, implied and prescriptive: (1) Express grant — the most reliable method. The dominant landowner (who benefits) and the servient landowner (over whose land the right runs) execute a deed of easement. For registered land, the easement must be registered at HMLR to have legal effect: the benefit is noted on the Property Register of the dominant title; the burden is noted on the Charges Register of the servient title. An express easement over registered land that was created after 13 October 2003 and was NOT registered at HMLR operates as an equitable easement only — it will bind successors in title who have notice of it (constructive notice if discoverable by inspection), but will not automatically bind a purchaser for value without notice. (2) Express reservation — where a landowner sells part of their land and expressly reserves an easement in their own favour over the sold land (e.g., reserving a right of way for the retained land to access a public road across the sold land). Must be expressly stated in the transfer document; (3) Implied easements — arise without express grant in limited circumstances: (a) Easement of necessity: where land would be absolutely landlocked (no access to a public road) without a right of way, a right of way is implied over the retained land of the common vendor who divided the land and sold the landlocked portion — but the implication of necessity is strict (truly landlocked; not merely inconvenient); (b) Common intention: a right is implied because both parties clearly intended it to exist but failed to state it expressly — courts are cautious and require clear evidence of the shared intention; (c) LPA 1925 s.62 — on a conveyance of land, all 'liberties, privileges, easements, rights, and advantages' previously exercised with or enjoyed by the land are deemed to pass with it. If the property previously enjoyed an informal permission (e.g., access across a neighbouring path) that was exercised without objection, s.62 may crystallise that informal permission into a legal easement on a conveyance — converting a permissive right into an easement; (d) Wheeldon v Burrows [1879] — when a landowner sells part of their land and retains the remainder, easements that were previously exercised by the common owner over the retained part for the benefit of the sold part will pass as easements with the sold part if they are: (i) continuous and apparent (regularly used and visible from inspection); (ii) necessary for the reasonable enjoyment of the sold land; and (iii) in use at the time of the sale. (4) Prescription (long use) — an easement can be acquired by 20 years' continuous use as of right — that is, use without force, without secrecy, and without the landowner's permission (nec vi, nec clam, nec precario — not by force, not secretly, not with permission). The Prescription Act 1832 provides the principal statutory mechanism: (a) rights of light: 20 years' actual enjoyment without interruption creates an indefeasible right, unless the servient owner has registered a light obstruction notice at HMLR during the 20-year period; (b) other easements (rights of way; drainage etc.): 20 years' enjoyment creates a right that can be defeated by showing that enjoyment was permissive (with licence); 40 years' enjoyment creates a practically indefeasible right. Since the Land Registration Act 2002, prescriptive easements over registered land can be registered at HMLR by application — the Land Register certificate of title for a property can include notes of prescriptive easements once an application is made and accepted

BTL practical impact, discovering easements and dispute resolution

How easements affect the management of BTL properties in practice — and the correct forum for resolving disputes:

• BTL practical impact — what easements mean for landlords and tenants: (a) Tenants' use of easements: a tenant occupying a BTL property is entitled to use any easements that are attached to (benefit) the landlord's property — the tenant's use of the property includes use of the property's legal rights. A right of way benefiting the landlord's title is available for use by the tenant during the tenancy: the tenant can pass over the servient land via the right of way route. The landlord cannot grant the tenant more than the landlord has — so if the easement is only pedestrian, the tenant has only a pedestrian right of way; (b) Servitude burdens — easements benefiting neighbouring land: an easement that benefits a neighbour's land and burdens the landlord's land must be observed by both the landlord and the tenants. If a neighbour has a right of drainage through the landlord's garden, neither the landlord nor the tenants can obstruct that drain without liability. If a neighbour has a right of way across the landlord's land, neither the landlord nor the tenants can block or interfere with that route. A landlord who interferes with a neighbour's valid easement commits an interference with that easement — actionable by the neighbour in the county court as a private nuisance; (c) Identifying easements before purchase: at the point of purchase, the conveyancing solicitor identifies registered easements from the Official Copies of the title register (the Property Register describes the property and lists any rights benefiting it — such as rights of way and rights of drainage; the Charges Register records burdens on the title including easements benefiting neighbouring land). However, not all easements are registered — particularly: older easements that pre-date the compulsory first registration requirements; prescriptive easements not yet registered; and implied easements arising from the circumstances of past conveyances. A physical inspection of the property (and of the surrounding land) can reveal: shared access routes; drains visible crossing neighbouring land; shared walls; and other physical features that evidence potential easements. The conveyance and transfer documents from the property's title deeds (if available) should also be reviewed for grants and reservations made when the land was first subdivided; (d) Practical examples for BTL landlords: (i) A shared back alleyway used to access rear gardens: does the landlord have a right of way registered at HMLR — or is the use informal and permissive? If the right is unregistered, the owner of the alleyway could block access at any time; (ii) A drain that runs through the neighbouring property: is it registered as a private drainage easement, or is it a public sewer (in which case, rights are statutory)? Check the CON29DW drainage search; (iii) A parking space that requires crossing a management company's forecourt: does the title include a right to cross the forecourt?
• Dispute resolution and the Party Wall Act distinction: Disputes about the existence, scope, or exercise of easements are resolved in the civil courts — the county court for claims up to £100,000 (and most residential easement disputes fall below this threshold); the High Court (Chancery Division) for higher-value or more complex cases; and the Upper Tribunal (Lands Chamber) for certain land-related disputes (particularly modifications and discharge of restrictive covenants under LPA 1925 s.84 — but the Upper Tribunal also hears some easement-related cases, particularly where easements are closely connected with title disputes). The First-tier Tribunal (Property Chamber) does NOT have jurisdiction over easement disputes — it handles leasehold, service charge, and housing matters, not the existence or scope of easements. Costs of easement litigation can be very significant — both parties to an easement dispute typically incur legal costs of £15,000-£50,000 for a contested case. RICS-accredited mediation is available and strongly recommended before commencing litigation — resolution through mediation avoids the uncertainty and costs of court proceedings and preserves the parties' relationship (particularly important where the easement dispute is between neighbouring landlords or between a landlord and a long-standing neighbour). The Party Wall etc. Act 1996 is frequently confused with easement rights — the PWA 1996 governs works to party walls, party structures, and excavations near neighbouring buildings. The PWA 1996 regulates how certain works can be carried out (through the party wall award process) — but it does NOT determine: (a) who owns the party wall or boundary; (b) whether an easement of support exists; or (c) the ownership of any disputed boundary feature. Easement claims arising in connection with party wall works (e.g., a claim that an easement of support will be infringed by excavation works) are dealt with in the civil courts — not through the PWA 1996 party wall surveyor process

Frequently asked questions