Property Law - Easements

An easement is the right of a landowner, and others claiming under him, to make use of the land of another. The most common situations in which easements arise are in of rights of way, rights of light and rights of support. The law in this area is complicated and somewhat arcane. Easements can arise as a matter of express grant: A sells of part of his land to B, and in order that B is able to access the land that he has acquired from A, as part of the conveyance, A grants to B a right to pass and repass over A’s land for the purposes of accessing B’s land. Or they can arise as a matter of implication: an easement will be implied where two parcels of land were previously in common ownership and the common owner exercised a right over one part of his land which would have been an easement had the parcels been in different ownership; if the exercise of the right is continuous and apparent and the exercise of the right is necessary for the reasonable enjoyment of the land in question, an easement will be implied.

The modern law continues to recognise the legal fiction of the “lost modern grant”: this is where the law will assume, if land has been used for a period of 20 years or more nec vi, nec clam, nec precario, (without force, without secrecy, without permission, i.e. “as of right”) that there was once a deed which has been lost or accidently destroyed – even if you know that there was no such thing.

Typical problems that arise are where the original grant was in a different context to a proposed modern use.  For example, take a conveyance of land in which the purchaser was intending to build a house. What if, 50 years later, his successors in title are building a factory and intend to use the way granted as access to that land? What if the access way is falling into disrepair? Who has to maintain it? What if the owner of the land decides to erect gates? Can the owner of the burdened land install a padlock on those gates? Can the easement be lost through non-use?

The right to an easement of support means that your neighbour is not free to do as he pleases on his own land if, as a result of digging down or removing a structure, he destabilises your land.

And a right to light means that a developer needs to make sure, before he embarks on his development, that his new building will not constitute an actionable interference with the right to light that his neigbour has acquired by prescription under the Prescription Act 1832.

Damian Falkowski provides the specific advice you will need on all aspects of the law of easements, whether you are a developer with an intended project, or whether you are a landowner concerned that a proposed development will interfere with your rights. He advises on all arears of easements, rights of way, rights of light, rights of support, parking etc.