Rights of Ways and Easements

An easement is a right to use another person’s property for a stated purpose. A type of easement can be a right of way that someone has over another person’s property.

There are 4 main types of easements that are recognised rights:

  • Rights of way
  • Easements of support (relating to excavations)
  • Easements of ‘light and air’
  • Rights relating to artificial waterways.

The easement of right of way is when someone crosses another’s land. It is usually used when a person needs to use another’s land to reach their home. This happens often when someone sells part of their land. If the easement of right of way could not be, home people can become stuck and never reach their own property.

Easement characteristics

For there to be an easement, it must first satisfy 4 characteristics:

  • There must be someone using the land and someone allowing the use;
  • The easement must accommodate the person using the land, this means that it is for their enjoyment and their benefit;
  • The people using and allowing the use of the land must be different people;
  • The right claimed must be capable of forming the subject-matter of a grant.

Creation of an easement

One of the most common ways to create an easement is an express easement. An express easement is most likely created through legal documents that act as binding contracts. An easement can be contained in the deed of the property. This means it can be binding on future owners of the property.

Another way of creating an easement is implied grant. This is where, for example, a licence for right of way can become an easement. An implied grant can also relate to where a plot of land has no access to a public highway. An easement for a right of way over another property to gain access will likely be implied, through necessity.

Where a right of way has been used for 20 years and the right of way was obvious and without permission, this can create an easement over the property.

A common easement that is contained on deeds on properties is for a water company to access the land to complete repairs of piping.

There are also easements for neighbours to use the water supply that is attached to the property. Most forms of easements are necessity and are in writing just for legal purposes.

Easements also come in different forms, as affirmative and negative easements. An affirmative easement is the right to use another’s property for a specific purpose, such as walking over the land to get home.

A negative easement is a restriction of the right to prevent an otherwise lawful activity on another’s property. This can include preventing the construction of wall that would block out the light.

Another type of right of way can be through licence. A licence can be implied use of land such as the postman/postwoman. It would be a big asking to register every type of person who is entitled to use the land.

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