What is an Easement/Right of Way?
An easement is the general term for the right to enter or use someone else’s property for a specific purpose. An easement can be written down in the Official Copy Entry of either owner’s title register at HM Land Registry. An easement can also be acquired over a period of time, simply by someone exercising the right on a regular basis. The four main categories of easements, over adjoining land are a right of way; a right of light and air; rights of support; and rights to artificial waterways.
Therefore, a right of way is a form of easement and confers on others the right to pass over or travel across property. This usually refers to when a road or footpath exists across the land. Use of a right of way must be reasonable and usually the right of way would be beneficial to an adjoining piece of land not owned by the party benefitting from the right of way. This might be the case if it is necessary to cross privately owned land to reach another piece of land or a property.
Express/Implied/ Prescriptive Easements
Easements are created in one of three ways:
Express Easements arise when the right of way is granted by a deed that is registered on the title; legislation; or a Will.
Implied Easements arise from necessity; common intention or the rule in Wheeldon v. Burrows. Section 62 of the Law of Property Act 1925 encapsulates this by preventing conveyancers from having to list every individual right benefitting a piece of transferred land.
Easements may also be created from Long-use/Prescription where the right of way has been used openly for 20 years or more without interruption. If this easement is not present on the title register, negotiating with the land owner to provide a statutory declaration should assist any future application to formally register it at HM Land Registry.
Rights to Light
A right to light is the right to receive sufficient natural light over another person’s land through particular windows in a building, so that building can be used for its ordinary purpose. A claim will arise if the result of the obstruction is that it will leave less than 50 percent of the affected room adequately lit.
Restrictive covenants can be imposed on land by a seller, who sells a proportion of their land to prevent a buyer from using it in a way which the seller considers harmful to their land they have retained.
The issues that arise in litigating restrictive covenants include enforcement; establishing the benefit and burden of a restrictive covenant; negotiating the modification of the covenant to allow a development to proceed.
Easement/Right of Way Disputes
Easement Disputes can arise for reasons including establishing/disputing a right of way; excessive use of the right of way; preventing access to a right of way; or failure to maintain/repair the right of way.
Our barristers at Mercantile Barristers are experienced in providing advice and representation to assist clients resolve easement disputes, including:
- Amending Easements
- Compelling someone to repair and maintain a right of way
- Conditions attached to an easement
- Establishing the existence of an easement
- Extinguishing easements
- Injunctions to stop interfering with an easement
- Injunctions to stop excessive/prohibited use of an easement
Our barristers have experience advising and representing homeowners; investors; property developers; and private and public companies on easement disputes efficiently and with cost-effective solutions. If the dispute cannot be settled out of Court, we can undertake Court proceedings on your behalf to ensure you achieve a solution.
If you think that your land is being used unlawfully, or your neighbours are not allowing you to exercise an easement over their land, contact our Property Litigation barristers today by filling in our Enquiry Form; emailing us at enquiries@mercantilebarristers.com; or by telephone on 0203 034 0077 and we would be happy to assist.
How Our Process Works
How Our Process Works
You can call, email, or fill out an enquiry form to tell us about your case. One of our specialist clerks will speak with you to make the arrangements to advance your case.
Our specialist clerk will match you with the barrister with the expertise to deal with all aspects of your case. They will also obtain and organise the papers the barrister will have to consider in your case.
Our clerk will agree the fee for your consultation with the barrister beforehand. The clerk will then arrange a convenient time for you to have the consultation by video call, telephone or in person.
In the consultation the barrister will assess your legal position, devise a legal strategy, and give you appropriate advice on the necessary next steps to achieve your objective.
Fill in the form below and one of our specialist clerks will get in touch.
