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Easements

EM Law are experts in advising clients on easements. Our lead commercial property lawyer is Razina Akhtar who has extensive experience in advising clients on a wide range of commercial property matters.

Nature of easements

An easement is a right benefiting a piece of land (known as the dominant land) that is enjoyed over another piece of land owned by someone else (the servient land).

Usually, an easement allows the owner of the dominant land to do something on the servient land, such as use a path, or run services over it ( “positive”).

More rarely, it will limit what the owner of the servient land may do on its land (“negative”). For example, the servient owner might be prevented from interfering with the dominant owner’s right to light.

Easements are sometimes confused with profits à prendre (profits). However, a profit is a right to take something from another’s land.

An easement is capable of existing at law only if granted for an estate in fee simple or for a term of years absolute (section 1(2), LPA 1925). It may be created by deed, by statute or by will. The acquisition of an easement by prescription presumes a grant by deed and takes effect as a legal easement for a fee simple absolute in possession.

Other easements take effect as equitable interests (section 1(3), LPA 1925). These arise principally:

  • Under a contract to grant a legal easement.
  • By proprietary estoppel.
  • By reason of a grant of a lesser interest than a fee simple absolute in possession or a term of years absolute (for example, a life interest in an easement).

Characteristics

A right must have all of the following characteristics to be an easement:

  • There must be dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised).
  • The right must accommodate the dominant land.
  • The dominant and servient land must be owned by different persons.
  • The right must be capable of forming the subject matter of a grant.

Positive and negative easements

Positive 

A positive easement allows the owner of the dominant land to do some act on the servient land, or to make use of some structure on it, for example a right to:

  • Use water pipes or drains.
  • Use gas pipes or electricity wires.
  • Pass over a path, road or way.
  • Discharge water into a watercourse.

Negative 

Negative easements are rights to receive something from the servient land without any obstruction or interference by the owner of the servient land. For example:

  • A right of light for a building. For more information on rights to light.
  • A right of air.
  • A right of support from a building.

For any questions you may have concerning commercial property law contact Razina Akhtar.

Easements EM Law Razina Akhtar

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