Nature of Easements – Part 2

The second property litigation blog in our two-part series will consider what happens when an easement is interfered with and what constitutes excessive use of an easement.

We also review some case law which demonstrates how the Courts may interpret easements.

Who do they bind?

A legal easement, created by deed or statute (most commonly created on a transfer form), will provide that the right will be granted to a freehold estate or for a term of years.

Prescriptive easements that have been used for more than 40 years also take effect as a legal easement, but in practice, this does not happen often.

If the servient land is registered at the Land Registry, the legal easement must also be registered; otherwise, it will be equitable only.

A legal easement will bind all purchasers, whereas an equitable easement will only bind a purchaser who has knowledge, and this can be challenged.

An easement must not exceed that which it was granted for or acquired.

Broadly, the use of an easement can be considered in three different but overlapping ways:

• The nature of the use.
• The purpose of the use.
• The amount of the use.

The three aspects are frequently looked at in the light of the character and identity of the dominant land.

Excessive use can be considered when a servient owner (who acknowledges that an easement exists) objects to the way in which it is now being used, probably as a result of changes to the dominant land over a period of time. 

A servient owner cannot prevent a person from lawfully exercising an easement because another person is exercising a similar easement in an excessive or unlawful manner.

Examples of excessive use include:

• Where there is an implied right of drainage over the nearby servient land, the demolition and replacement of a bakery with two new dwellings leading to a greater drainage flow (as in McAdams Homes).
• Attempting to use a grant of a right of way for access to houses and warehouses to also enable access to a railway station, which was later found on the dominant land (as was in issue in Milners Safe Company Limited v Great Northern & City Railway Co. [1907] 1 Ch 208).
• Changing the nature of a plant nursery’s business to include non-agricultural activities when the easement in question merely allowed access to the site for use as “agricultural land only” (Mills v Estate of Partridge and another [2020] EWHC 2171 (Ch)).

• Whilst in many instances, the Courts will look at whether interference with an easement can be compensated by an award of damages, there is a body of case law where the Court has awarded an injunction preventing those works which result in interference. Clearly, this would cripple a development scheme.
• Developers, therefore, need to undertake due diligence to fully understand the legal nature of the rights benefitting and burdening a development site before they spend significant sums designing development schemes. A failure to adequately accommodate easements may seriously impact the type and extent of a potential development.
• If an easement is likely to interfere or impede a development, consider whether an indemnity insurance policy may assist before approaching the dominant owner.