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Easements and Land Development: A Developer’s Essential Guide

For developers looking to purchase and develop land in the UK, understanding easements is crucial for successful and seamless project execution. Easements are rights that benefit one piece of land (known as the “dominant land”) over another piece of land (known as the “servient land”). They play a pivotal role in determining what can and cannot be done with a property. In this article, we will explore the significance of easements, the various types, and the potential challenges they may pose to developers.

What is an Easement?

In simple terms, an easement is a right that allows the owner of one piece of land to use or access another piece of land. These rights have four essential characteristics:

Identifiable Land: Both the dominant and servient land must be clearly identifiable.

Different Owners: The dominant and servient land must be owned by different individuals or entities.

Benefit to the Dominant Land: The right must benefit the dominant land itself and not merely confer a personal advantage on the landowner.

Registrable: The right must be capable of registration at the Land Registry.

Easements can be positive (e.g., rights of way or rights to run services through the servient land) or negative (e.g., rights to light or support).

Types of Easement

Easements can arise in different circumstances, and the most common types include:

Express Easements/Easements by Grant: These are created by a deed between the dominant and servient landowners. In the case of registered servient land, an express easement must also be registered at the Land Registry, making it relatively straightforward to check when considering land acquisition.

Implied Easements: Implied easements can result from necessity, such as when a piece of land becomes landlocked following a sale of part.

Easements by Prescription: These easements arise when a right has been continuously exercised over another’s land without permission for at least 20 years.

Challenges Posed by Easements

Easements are not always evident, and they can develop over time through long use. This is why it’s vital for prospective purchasers of development land to examine not only the legal title but also the practical situation on the ground.

Interference with an Easement

Interfering with an easement can have a significant impact on development plans. Even if the interference does not completely destroy the easement, it may still be actionable by the dominant landowner. Injunctions, court declarations, and potential damages are remedies available to address interference.

Excessive Use

When relying on an existing easement for a development, it’s essential to ensure that the scope of the easement is sufficient for the intended use. An easement cannot be used in a manner that exceeds its original purpose. The nature, purpose, and amount of use will determine if the use is excessive.

Developers should exercise caution when contemplating a change in use for a development. Each case is unique and may have different implications for the use of an existing easement.

Taking a New Easement Over Private Land

In situations where the development site lacks existing easements, developers may need to establish new easements over third-party land to provide access or services to the development site. This process involves thorough title due diligence to identify any potential obstacles that might hinder the grant of the easement.

Easements are a critical consideration for developers in the UK. Understanding their types, implications, and the potential challenges they pose is vital to ensuring a smooth and successful development process. Early investigation and legal advice regarding easements can save developers from significant delays and financial setbacks during the development journey.

If you require further advice or assistance on easements and land development, it is advisable to consult with legal professionals experienced in commercial property matters. Proper guidance will help you navigate potential easement issues and ensure the success of your development project.

For additional assistance and information regarding easements in the context of land development, you can contact our Commercial Property Team at 01603 677077 or email info@spiresolicitors.co.uk.