What is an easement, and why do they matter for developers?
An easement is a right over a section of land (known as the ‘servient’ land) that exists to the benefit of another section of land (known as the ‘dominant’ land). There are four characteristics essential to an easement, and each of these needs to be satisfied for the easement to exist:
1) The ‘servient’ and ‘dominant’ land both need to be clearly identifiable.
2) The ‘servient’ and ‘dominant’ land need to be owned by different persons.
3) The easement must be of a nature that benefits the ‘dominant’ land, as opposed to merely benefitting the landowner of the ‘dominant’ land.
4) The easement must be registered with the Land Registry.
Easements can be positive in nature (such as a right of access or a right to allow services to run via servient land) or negative (a right to support or lighting, for example). When you buy or sell land, you should inquire as to whether any easements apply.
Why do easements matter for developers?
Easements can impact land valuation and developments, which is why prudent developers need to be aware of any easements at an early stage of a project. Developers should always be mindful of committing funds to a project which could amount to interference with an easement.
However, easements do not have to be completely destroyed in order for a developer to continue without being accused of interference. Likewise, there are several remedies in which a dominant landowner can use an easement to prevent development, including:
A landowner may apply to the court for a declaration that clarifies the existence, extent and scope of an easement. A developer may also apply to seek a negative declaration, which proposes that any development will not interfere with the existing easement.
A dominant landowner could apply to obtain an injunction to halt any development undertaken by a servient landowner. These proceedings can cause delays and add significant additional costs to the developer, or perhaps even prevent development from continuing past the planning stages.
A developer could be liable to pay damages to a dominant landowner if they interfere with an easement if this interference results in a loss to the dominant landowner. In some cases, exemplary damages may also be applied for or awarded if the developer stands to make a profit.
How long do easements last?
It is important for developers to understand that easements remain enforceable unless they have been terminated in a court of law - even if the easement has not been exercised for years or even decades.
In the UK, the courts are reluctant to treat easements as having been abandoned, unless the dominant landowner has positively demonstrated an intention to give up the right to the easement.
Why developers need to be careful around easements
Developers need to tread carefully before taking any steps which might be construed as interfering with an easement. If an easement exists on land you are thinking about developing, you should seek appropriate legal advice to assess the likelihood of any enforcement action being taken against you.
In addition to this, you should also consider if any alternative courses could be taken that would allow you to avoid interfering with an easement. For example, could your project be developed while also accommodating the existing easement?
Excessive use of an easement
Sometimes developers hope to rely on the existence of an easement to help benefit a proposed development. For example, a right of access or a right to lay services could be used to bolster a planning application.
However, as a developer, it is crucial to ensure the easement is sufficient in scope for its intended use. Just because the land benefits from an existing easement, it does not mean you can automatically be expected to be allowed to develop upon it.
Easements cannot be used in a way that exceeds their original purpose. Whether the use of an easement is considered excessive will depend on the purpose, nature and amount of use of the easement.
The relevant legal test is usually whether the dominant landowner will end up increasing the burden on the servient land. An example of this would be the switching of the dominant land from agricultural use to a proposed residential development, which will usually result in any existing easement being considered excessive.
Can a developer apply for a new easement on private land?
As a developer, you can apply to take out a new easement over third-party land to gain access or provide services to a development site. If you require a new easement, you should be prepared to perform due diligence as early as possible to highlight any potential obstacles which could hinder the granting of an easement.
If you’re currently considering development and would like more information on easements, planning or construction expertise, please feel free to contact us today. We pride ourselves on having an excellent track record in the delivery of construction projects to an exceptionally high standard, and we will be happy to discuss your requirements while offering impartial advice.