Easements
An easement (usually) is a positive right over adjoining land; a covenant is a negative right. We might imagine two adjacent plots, plot A and plot B. If A has a right to lay a drain across B’s land this is an easement: because the laying of pipes is a positive act.
If A also has a right to prevent B from building in his back garden, this is a covenant: it does not give A the right to do anything on B’s land, simply to stop B from doing something.
Easements
The most common form of easement is a right-of-way and a right-of-support. They can arise by express agreement or by long use. Either way, the purported right will have to satisfy certain qualifications before it can be an easement. Why does this give rise to litigation? This is because land use, like everything, is always changing. So eventually the two clash: the new use desired by the owner against the legal rights and restrictions that already attach to the land concerned.
When confronted with an easement we look at two things: first its substantive quality: is it the sort of right that can ever be an easement? Then its procedural quality: does the language used bind it to the two pieces of land concerned?
Before an easement can exist there must be two identifiable pieces of land: one which benefits, called the ‘dominant tenement’, and one which is subject to it, called the ‘servient tenement’.
There are four points to consider:
- Can we identify the Dominant land? We must be able to identify the land said to be the ‘Dominant Tenement’. So a right-of-way expressed as such in the deeds of Plot B, but with no accompanying statement as to who can use it might not qualify because, unless there is other evidence, we do not know who was to have this right.
- Is the right capable of being a grant? In other words could what is claimed be capable of being given? For example: if C, a temporary squatter on B’s land, purports to give A a right-of-way across B’s land this cannot become an easement because C never had the power to grant the right.
- Does the dominant land benefit? It must be A’s land (and not just A) which must benefit from the right. Imagine plots A and B are in Wembley. The owner of Plot B each year gives the owner of Plot A the right to come onto his land to watch the cup final. This may be of huge value to A, he may live for nothing else, but it cannot become an easement because however much the moles in A’s land support Arsenal the land itself does not benefit.
- Is there any positive obligation on the servient owner? What this means is that A’s right must put positive no obligation on B. So a right-of-way for Plot A along a track across Plot B will qualify as an easement, but not if it also comes with an obligation on B to repair and maintain the trackway.
If you are proposing to build on land which is subject to an easement, or you have the benefit of an easement which might be affected by a proposed development, by all means, call me.