Buying or selling property with easements or rights of way
When you are buying or selling a property, it is important to understand whether anyone else has legal rights over the land, or whether the property itself benefits from rights over neighbouring land. These rights are often perfectly manageable, but they do need to be identified properly at an early stage. If they are overlooked, they can cause delay, uncertainty and, in some cases, disputes after completion.
What are easements?
An easement is a legal right enjoyed by one piece of land over another. In simple terms, it allows the owner of one property to do something on, under or over neighbouring land, or to prevent certain interference with a right that already exists. Common examples include rights of way, rights to run drainage or other services through adjoining land, and rights of support, light or access.
Not every easement causes a problem. In fact, many are essential. A rear garden may only be reachable via a shared path. A drainage pipe may cross next door’s land. A garage may only be usable because there is a right to drive over a private accessway. The key point is that the right should be clear, adequate for the way the property is used, and properly documented where possible.
What are rights of way?
A right of way is one of the best-known types of easement. It gives a person or property the legal right to pass over land owned by someone else. That may be on foot only, or it may include vehicles, depending on the wording of the right and the history of the property.
Some rights of way are used occasionally, such as a shared path leading to bins or a rear gate. Others are fundamental to the property, for example where the only way to reach a driveway, parking space or outbuilding is by crossing adjoining land. If a right of way is unclear, too narrow in scope, or disputed by a neighbour, it can become a significant issue in a transaction.
How do you know if there are any relating to a property?
The first place to look is usually the title documentation and any deeds referred to in it. Easements and rights of way are often expressly granted or reserved in transfers, conveyances and other historic documents. A seller may also disclose relevant information in the standard property information forms, and a buyer’s solicitor will review these carefully as part of the conveyancing process.
They may also become apparent from the layout of the property itself. A shared driveway, a path across neighbouring land, inspection chambers serving more than one property, or service media crossing boundaries can all suggest that legal rights are in play. Sometimes the paperwork is clear. Sometimes it is not, and further investigation is needed.
Who do they apply to?
In most cases, easements benefit one property and burden another. The property with the benefit is sometimes called the dominant land. The property which must allow the right to be exercised is sometimes called the servient land. In practical terms, that means one owner may have the right to use a path, driveway or service route, while the other owner must not interfere with that use.
These rights usually attach to the land itself rather than to the individual owner personally. That is why they can continue to affect future buyers and sellers long after they were first created.
Can you remove them, and if so, how?
Sometimes an easement or right of way can be released, varied or extinguished, but it is not something that can simply be ignored. Much will depend on how the right arose, whether it is still needed, and whether the party with the benefit is willing to agree. In many cases, the most straightforward route is a formal deed entered into by the affected owners.
There are also circumstances in which a right may come to an end because it has been abandoned, because the benefiting and burdened land comes into the same ownership, or because a court determines that it is no longer enforceable. However, these situations are fact specific and should never be assumed. If a seller wants a right removed before marketing, or a buyer is concerned about the extent of a right, tailored legal advice is usually essential.
Do they make any difference to the property buying or selling process?
Yes, they can do. Some easements and rights of way are routine and cause no real difficulty at all. Others can affect value, mortgageability, future development plans, privacy or day-to-day enjoyment of the property. For example, a buyer may want to know whether a shared driveway is wide enough for vehicles, whether services can be repaired without dispute, or whether members of the public or neighbouring owners regularly pass close to the house.
For sellers, early preparation can make a real difference. If title documents are incomplete, if an access route is used differently from the way it is described in the deeds, or if there has been a disagreement with a neighbour, it is usually better to address that before the transaction is too far advanced. For buyers, careful investigation at the outset can help avoid unpleasant surprises later.
A practical point to keep in mind
Easements and rights of way are not unusual, and they do not necessarily mean that a transaction is at risk. What matters is understanding exactly what rights exist, who benefits from them, how they are used in practice and whether the paperwork properly reflects the position on the ground. If those questions are dealt with early, buyers and sellers are in a much stronger position to move forward with confidence.
How Fraser Dawbarns can help
Our residential property, agriculture and estates and commercial property teams are all very used to assisting clients who are buying or selling properties involving easements or rights of way. Please contact the relevant team for your property type in any of our offices, or complete the enquiry form below, if you would like advice about your individual circumstances and property transaction.
How To Contact Us:
To contact a member of our team, you can fill in our online enquiry form, email info@fraserdawbarns.com, or call your nearest office below. If you’d like to speak to a member of our team at one of our offices across Norfolk and Cambridgeshire, visit our offices page.
Wisbech: 01945 461456
March: 01354 602880
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In order to protect client anonymity, the initials in the above case study have been changed and do not relate the the client or other parties in any way. This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.