Easements and Development Sites – Handle with Care!
Easements: an important but often overlooked aspect to consider when developers acquire land for redevelopment.
What is an easement?
An easement is a right that benefits a piece of land. The land that has the benefit of the right is called the dominant land. When this right is enjoyed over another parcel of land (known as the servient land) owned by a third party – an easement may have been created. An easement can include but is not limited to: rights of way, rights to drain or rights of access (this list is not exhaustive).
An easement has specific characteristics. These are:
• There must be dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised).
• The right must benefit/accommodate the dominant land.
• The dominant and servient land much be owned by different persons.
• The right must be capable of being registered at the Land Registry.
The accidental creation of an easements
The creation of easements is rather complex and, on occasion, they can be created accidentally (depending on your point of view!) via the legal doctrine of prescription. This is when the owner of the dominant land exercises a specific right for example: a right of way over a footpath passing through a field that has been used for a number of years without interruption by the landowner of the servient land. The right needs to have been exercised for a long period of time. For the doctrine of prescription to apply, this is usually 20 years. It is at this point that the owner of the dominant land could apply to the Land Registry to have the easement noted on their title.
How do easements impact on development land?
It is often the case that developers will acquire a parcel of land with the intention of developing the land with the new properties then being sold on to third party purchasers.
It is key for a developer, prior to purchasing the site, to establish whether they can (and whether their successors in title can also):
1) Access the site either on foot and with vehicles (ideally from an adopted highway).
2) Use and, if necessary, lay services (such as gas, electricity and water) to the site.
It will be the developer’s legal team’s responsibility to ensure that their client can access the site and that their client can undertake whatever works they need too in order to carry out their intended developments and that the easements are suitable for the intended use of the land. If the necessary easements aren’t in place, this will form part of the negotiation and may very well impact on price.
The above is intended as a brief guide to Easements and their impact on Developments, and should not be relied upon as specific legal advice.
If you require further advice regarding Easements and Developments or any other Real Estate matter, please contact Terri Warren in our Real Estate department. You can also email your query to firstname.lastname@example.org , call 01276 854942 or visit https://www.herrington-carmichael.com/.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
Latest Articles & Legal Insights
Discussing life after lockdown, loan to value and the changing face of our high streets…
As with any economic crisis, the property market is one of the first and one of the hardest to be hit…
COVID-19 and the Prime Minister’s imposition of lock down restrictions on 23rd March has had an impact on the housing market …
In these challenging times, it is not unusual for a person to require some financial assistance from a family member in order to purchase a property.
During these uncertain times, both Developers and Land Owners alike may be keen to see purchase prices index linked in Option Agreements and Contracts…
We’ve all heard the rhetoric of the Covid-19 lockdown being a strange and difficult time, and if you are looking to buy or sell property at first…
Top read insights in 2019
Award winning legal advice
We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.