Every landlord in England and Wales should understand easements before acquiring, developing, or letting investment property. An easement is a right over another person's land (the servient tenement) that benefits your land (the dominant tenement), or that someone else holds over yours. Rights of way, drainage rights, rights of light, and support rights are all examples. Once properly created, an easement runs with the land permanently, it cannot be overridden simply by selling or mortgaging the property. Landlords who buy without checking for incumbrances, or who develop without preserving necessary access rights, can find themselves locked in expensive litigation with neighbours or unable to use their property as intended.
What Is an Easement? Legal Requirements
An easement is a proprietary right over someone else's land. To be valid, it must satisfy the four conditions in Re Ellenborough Park [1956]: (a) there must be a dominant and servient tenement, the right must benefit a specific piece of land (the dominant tenement) and burden another specific piece of land (the servient tenement); personal licences are not easements; (b) the easement must accommodate and serve the dominant tenement, it must be connected with the use and enjoyment of the dominant land, not merely personally advantageous to the current owner; (c) the dominant and servient tenements must not be owned and occupied by the same person at the time the easement is created (though unity of ownership extinguishes an easement); (d) the right must be capable of forming the subject matter of a grant, it must be definable with sufficient certainty, not require the servient owner to spend money (except for fencing obligations), and not be too wide or vague. Common examples that satisfy all four requirements: right of way (foot and/or vehicular), drainage rights through another's land, rights of support (adjacent buildings), rights of light, and rights to park. Rights that generally do NOT qualify as easements: the right to a view; the right to receive a supply of wind (for a windmill), Dalton v Angus (1881); the right to have the neighbour's property kept in repair.
- Four requirements: dominant + servient tenement; accommodates the dominant land; different ownership; capable of forming the subject of a grant
- Easement vs licence: a licence is personal and revocable; an easement is proprietary and runs with the land, binding on successors in title
- Rights of way: must specify the route and whether pedestrian, vehicular, or both; vague rights of way cause litigation
- Right to park: can be an easement if it does not give the dominant owner exclusive possession of the servient land, Moncrieff v Jamieson [2007]
- Rights that fail: right to a view; right to receive wind; right to general amenity, these are not capable of being easements
How Easements Are Created
Easements can be created in four ways: (a) Express grant or reservation: the parties expressly create the easement in a deed (most commonly a transfer or conveyance). A grant creates an easement benefiting the purchaser's land over the seller's retained land. A reservation creates an easement benefiting the seller's retained land over the land sold. Express easements over registered land must be completed by registration under LRA 2002 to operate as legal easements (s.27 LRA 2002); (b) Implied grant: where a transfer or conveyance does not expressly mention an easement but one is implied by law, Wheeldon v Burrows (1879): all quasi-easements (rights continuously and apparently used) that are reasonably necessary for the reasonable use of the land pass on a conveyance; LPA 1925 s.62: a conveyance passes all rights, liberties, and advantages that were previously enjoyed informally, this is a major trap for sellers and landlords who want to restrict what passes; (c) Presumed grant (prescription): long user as of right without force, secrecy, or permission can give rise to an easement by prescription, at common law (20 years' use), lost modern grant (20 years' use giving rise to a presumed past grant), or under the Prescription Act 1832 (20 years for most easements; 40 years for rights of light); (d) Statute: some easements are created by statute, e.g. access orders under the Access to Neighbouring Land Act 1992 for maintenance work.
- Express grant/reservation: best practice, always use clear, specific language; registered easements must be completed by registration under LRA 2002 s.27
- Wheeldon v Burrows: all quasi-easements used continuously and apparently, and reasonably necessary for the use of the land, pass on a conveyance
- LPA 1925 s.62 trap: a conveyance of part automatically passes all rights enjoyed informally, sellers must exclude s.62 in the transfer if they want to retain control
- Prescription: 20 years' continuous use as of right (without force, secrecy, or permission) can create a prescriptive easement, even against unaware landowners
- Rights of light: 20-year prescription under the Prescription Act 1832; can be blocked by registering a light obstruction notice at HMLR or building a physical obstruction before 20 years runs
Rights of Way, Scope, Extent, and Obstruction
The scope of a right of way is determined by its terms (express) or by the circumstances of its creation (implied/prescriptive). Key principles: (a) Vehicular vs pedestrian: where the grant is silent, the nature of the right is determined by the circumstances of grant, an access to a field may be limited to agricultural vehicles; if a right of way was created to serve a business, subsequent changes in use that intensify use beyond that reasonably contemplated may be challenged; (b) Width: the court will construe the width according to the terms of the grant and the physical extent of the way at the time of grant; obstruction of any part of the defined width is actionable; (c) Obstruction: it is actionable nuisance to substantially interfere with the enjoyment of a right of way, by erecting a gate (without reasonable justification and a key), blocking access with vehicles, or altering the surface; (d) Excessive user: the servient owner can object if the dominant owner uses the way in a substantially different manner or for substantially different purposes than those within the scope of the grant, Jelbert v Davis [1968]; (e) Maintenance: in the absence of express agreement, the servient owner has no obligation to maintain a right of way but may not actively obstruct it; the dominant owner can carry out repairs at their own expense; (f) Landlord and tenant: on a letting, the tenant takes the benefit of all easements appurtenant to the demised premises; rights of way enjoyed by the property pass automatically to the tenant, no express grant is needed; the tenant can sue for obstruction of a right of way without the landlord joining.
- Vehicular vs pedestrian: scope of a right of way is construed from the terms of grant and surrounding circumstances, intensification of use beyond the scope can be challenged
- Obstruction: erecting a gate, parking vehicles on the way, or altering the surface can all constitute actionable nuisance if they substantially interfere with enjoyment
- Maintenance: the servient owner has no obligation to maintain the way (absent agreement) but must not actively obstruct it
- Excessive user: if a right of way was created for agricultural use and the dominant tenement is developed into a housing estate, the servient owner may be able to restrict its use
- Tenants: automatically take the benefit of all easements appurtenant to the demised premises, they can enforce without the landlord's involvement
Restrictive Covenants, Overlap with Easements
Restrictive covenants are negative obligations (not to do something) that run with freehold land under Tulk v Moxhay (1848). They are not easements but are commonly encountered alongside them in title registers. Key points for landlords: (a) Running with the land: a restrictive covenant binds successors in title to the burdened land provided: (i) it is negative in substance (restricts use); (ii) it was intended to run with the land; (iii) the covenantee retains land that benefits from the covenant; (iv) it has been registered (registered land: notice on the charges register; unregistered land: Class D(ii) land charge); (b) Common examples: no residential use without consent; no further development; no commercial use; maintenance of a shared access or wall; (c) Modification and discharge: under LPA 1925 s.84, the Upper Tribunal (Lands Chamber) can modify or discharge a restrictive covenant that: (i) is obsolete due to changes in the character of the property or neighbourhood; (ii) impedes reasonable use of the land without benefit to the person entitled to enforce it; (iii) has been agreed to by all entitled to its benefit; (d) Landlord caution: always check the charges register for restrictive covenants before purchase, a covenant restricting residential use on commercial property (or vice versa) can fundamentally affect the letting strategy; (e) Breach by tenant: if a tenant breaches a restrictive covenant in the landlord's title, the neighbour can sue both the tenant (in contract if they covenanted) and may seek an injunction against the landlord for breach of the title covenant.
- Tulk v Moxhay: restrictive covenants run with freehold land and bind successors in title if registered, unlike positive covenants which do not run
- Check charges register: always review registered restrictive covenants before purchase; a use restriction can derail a letting strategy
- s.84 discharge: apply to the Upper Tribunal to modify or discharge obsolete or unduly restrictive covenants, success is not guaranteed; indemnity insurance is faster for low-risk covenants
- Tenant breach: a tenant who breaches a restrictive covenant in the landlord's title can expose the landlord to injunction proceedings from the benefiting neighbour
- Positive covenants do not run: at law, a purchaser is not bound by positive covenants (obligations to spend money) in a prior deed, except in leasehold or where estate rentcharges are used
Extinguishing Easements and Practical Dispute Resolution
Easements can be extinguished in the following ways: (a) Unity of ownership and possession: if the same person comes to own and occupy both the dominant and servient tenement, the easement is extinguished by merger, it cannot revive if the tenements are subsequently separated; (b) Express release: the dominant owner formally releases the easement in a deed; for registered land, the release must be completed by cancellation of the entry at HMLR; (c) Implied abandonment: abandonment requires evidence of an intention by the dominant owner to permanently abandon the easement, mere non-use is not sufficient (Benn v Hardinge (1992)); 175 years of non-use was not enough in that case; courts require clear evidence of permanent abandonment; (d) Statutory extinguishment: certain easements are extinguished by statute (e.g. on compulsory purchase); (e) Practical dispute resolution: (i) check the Land Register, is the easement registered on the dominant title as an appurtenant right and on the servient title as a burden?; (ii) check the transfer deed, does it grant or reserve the easement expressly?; (iii) if the easement is informal or prescriptive, gather evidence of continuous user; (iv) mediation: property disputes involving easements are well suited to mediation, costs are high; outcomes uncertain; courts actively encourage mediation; (v) without prejudice negotiations: most easement disputes settle through without prejudice correspondence and a formal deed of easement or variation; (vi) injunction: a dominant owner whose easement is obstructed can seek a final or interim mandatory injunction requiring removal of the obstruction.
- Unity of ownership: merging dominant and servient tenements extinguishes the easement permanently, it does not revive on re-separation
- Abandonment is hard to prove: non-use alone is never enough; the court requires clear evidence of permanent intention to abandon, Benn v Hardinge (1992)
- Check the register: verify that easements are registered as appurtenant rights (dominant title) and as burdens (servient title), unregistered easements may not bind purchasers of registered land
- Mediation first: most easement and access disputes resolve through mediation; litigation is expensive, time-consuming, and outcome uncertain
- Injunction: the most effective remedy for obstruction of a right of way, mandatory injunction to remove the obstruction is available where legal title to the easement is clear
Frequently asked questions
What is the difference between an easement and a licence?+
An easement is a proprietary right that runs with the land and binds successors in title. It must satisfy the four requirements in Re Ellenborough Park [1956]: dominant and servient tenements; accommodates the dominant land; different ownership at creation; capable of forming the subject of a grant. A licence is merely a personal permission, it is revocable by the licensor and does not bind a purchaser of the servient land. For landlords, the distinction matters because a licence to cross a neighbour's land provides no security, the neighbour can revoke it at any time, leaving the property landlocked.
Can a tenant enforce a right of way over a neighbour's land?+
Yes. When a landlord grants a tenancy of land that has the benefit of an easement, the tenant automatically takes the benefit of that easement as appurtenant to the demised premises. The tenant can sue in their own name for obstruction of the right of way without joining the landlord. The landlord's consent is not required. This principle extends to all easements that benefit the let property, drainage rights, rights of support, and rights of light.
How long does it take to establish a prescriptive easement?+
Under the Prescription Act 1832, most easements require 20 years of continuous use as of right (nec vi, nec clam, nec precario, without force, secrecy, or permission) to establish a prescriptive right. Rights of light require the same 20-year period under s.3 of the Act. At common law and under the doctrine of lost modern grant, 20 years' use also suffices. For landlords whose tenants are using a neighbour's land informally, or whose neighbours are crossing their land, it is important to take steps before 20 years expires, registering a light obstruction notice, erecting an obstruction, or seeking acknowledgement of licence status.
What is LPA 1925 s.62 and why should landlords be careful?+
Section 62 of the Law of Property Act 1925 provides that a conveyance of land automatically passes all rights, liberties, privileges, easements, profits, and appurtenances belonging to or enjoyed with the land. This can convert informal rights (mere licences) into full easements on a conveyance. Landlords who have been allowing neighbours to use their land informally should be aware that if they then sell the dominant land without excluding s.62 in the transfer, those informal rights may crystallise into easements. The standard conveyancing practice is to exclude s.62 explicitly in the transfer where the seller wants to retain control.
How do I remove a restrictive covenant that prevents me developing my rental property?+
You have two main options: (1) Apply to the Upper Tribunal (Lands Chamber) under LPA 1925 s.84 for modification or discharge on grounds that the covenant is obsolete, impedes reasonable use, or that those entitled to enforce it agree to discharge it. This process can take 12-18 months and the outcome is uncertain. (2) Obtain restrictive covenant indemnity insurance, a policy that protects you against enforcement risk where the covenant is old, the benefiting land is difficult to identify, or the prospect of enforcement is low. Insurance is faster (days rather than months) and provides certainty for both the owner and a future purchaser. Always take legal advice on which route is appropriate.