Easements & Development Land: Key Points for Developers to Note
It is essential that a developer fully investigates and understands, early in the purchase/development process, what easements affect the land proposed to be purchased. Here, Beyond Corporate Law’s Rhian Hawkins discusses the key points for developers to note when it comes to the common types of Easement and Development Land.
Easements are rights benefitting one piece of land (‘the dominant land’) over another piece of land (‘the servient land’). The presence of such rights or lack of rights (as the case may be) can significantly impact what can be done with property. Failure to carry out these investigations properly, can lead to significant wasted planning and professional costs, where the presence of such rights or lack of rights (as the case may be) ultimately sterilises development.
Whilst the registered title/ title deeds to a property are a good starting point, they are not conclusive and will only evidence rights which have been expressly granted by deed. In addition to these rights, a property can benefit from and be subject to undocumented rights, these rights can arise in a number of ways, they can be:
- implied; or
- claimed by prescription.
Implied rights are imposed by law due to necessity (for example, where a piece of land is landlocked following a purchase/sale of part) and prescriptive rights arise by long use. The law governing prescriptive rights is complex. However, in simple terms, to acquire a prescriptive right there needs to have been 20 years ‘continuous use’ as ‘of right’. This means that there must not be any unexplained periods of non-use and the right must be exercised without permission, challenge, force or secrecy. In light of this and to mitigate risk, a prudent developer should in addition to raising specific enquiries of the seller as to rights benefitting and affecting the proposed land to be purchased:
- ensure that they carry out thorough physical inspections, at different times of the day, to check for signs of rights which may be being exercised over; and
- undertake wider historical searches, including commissioning historic aerial photographs and checking planning and building control archives (where available).
Common types of easement include:
- rights to light;
- rights of way (on foot or by vehicle);
- rights of access for maintenance purposes;
- rights of support; and
- rights to run and use services through, over or under land.
This list is simply illustrative and not exhaustive.
In relation to development land, whilst rights to light are commonly overlooked, they are a powerful tool for those who wish to resist development and something which a developer should pay particular attention to. A right to light is the right to receive sufficient natural light through defined openings (including windows) to allow the use of a building for the ordinary purpose for which it is or could reasonably be put.
Whilst in some limited circumstances, it may be argued that easements have been extinguished and no longer exist. Such claims are extremely difficult to run. Therefore unless there is an express release or the easement was expressly granted for a limited time period, most easements are and should be treated and viewed as being permanent in nature. A developer should not be fooled into thinking that they can simply stop up, divert or alter the route or an easement to facilitate the carrying out of development. This can only be done where, such right has been expressly granted or is otherwise implied.
Where the use of an easement is prevented or otherwise obstructed, so as to give rise to a substantial interference, enforcement action may be taken by the dominant landowner. Whether interference is substantial or not will turn on the facts of the particular case in hand. It would need to be established that notwithstanding the obstruction, that the easement could be exercised as conveniently as before. If a gate where to be erected along the route of a right of way for example, this may not constitute a substantial interference, where a key is made available. Whilst the offer of or existence of an alternative route, does not prevent the interference being actionable, it may have an impact upon the remedies available to the dominant landowner.
There are four remedies available, where easements are obstructed or prevented:
- A declaration from the Court to define and confirm the extent and existence of an easement. The court can also make a negative declaration to confirm that there is no substantial interference with an easement.
- An injunction awarded by the Court to stop the obstruction.
- An award of damages by the Court to compensate for loss. Where a defendant is set to make a profit, which will be case in the event of development, exemplary (punitive) damages may in addition be awarded. Sometimes, where there has been unreasonable behaviour, damages are also awarded for stress or anxiety.
- Abatement, which is a common law right entitling entry onto the servient land in order to stop and put right the interference. This self-help remedy is not appropriate for use where the interference is substantial, complicated or long standing.
The most concerning of these, for a developer being the threat of/ issuing of injunctive proceedings. The issue of such proceedings will bring an instant halt to works. At worst, they will put a complete stop to the development and even if the claim is unsuccessful, they will result in prolonged delays and substantial additional costs. An injunction will only be awarded where damages are not an adequate remedy of the developer has acted in a high-handed manner.
A developer should ensure that they seek legal advice before taking any steps which may result in interference with an easement, to assess the risk of enforcement action and the practical options available to mitigate risk. Where easements affect land proposed to be developed, to eliminate risk all together, careful consideration should be given as whether the land can be developed in such a way so as to accommodate the continued exercise of the rights.
Should a developer wish to rely on an easement benefitting the land proposed to be developed, whether expressly granted or acquired by other means, it is crucial (particularly where a change in use is proposed), to ensure that the extent/scope of the easement is wide enough to accommodate the developer’s proposed use and can actually be relied upon. Easements cannot be used excessively and can only be used in a manner which does not exceed the purpose for which it was originally granted/acquired.
Whether use of an easement is excessive depends upon a number of factors, including the nature of use, the purpose of use and amount of use. The use of an easement will be excessive where is can be established that the proposed use by the dominant landowner will substantially increase the burden on the servient land. A radical change in the use of the dominant land, such as from agricultural use to a large residential or commercial development, would likely be deemed excessive, meaning the existing easement could not be relied upon. However, each case would turn on its own facts and require careful consideration. Where there is a dispute concerning the scope of an existing easement, the servient landowner may seek injunctive relief to stop the rights being exercised and/or bring a claim for trespass.
Where land proposed to be purchased for development requires the benefit of rights over third party land, a developer should bring this to the attention of their solicitor promptly, in order that their solicitor may advise them as to whether such rights exist and where they do not or appear to be limited, the practical steps that can be taken to eliminate/ mitigate risk to allow for the development to progress forward.
By Rhian Hawkins