Easements and Presciptive Easements - Solicitors Advice

During the sale or purchase of property your conveyancing solicitor will often come across easements. An easement is a right benefiting a piece of land (known as the dominant land) that is enjoyed over land owned by someone else (the servient land).

A positive easement allows the owner of the dominant land to do something on the servient land such as run services over it (including water, drainage etc). Less common are negative easements, whereby an easement will limit what the owner of the servient land may do on its land such as not to construct buildings that would interfere with the dominant owner’s right to light. Your solicitor should be able to advise you of the effect of easements on the land that you are buying or selling.

An easement is a proprietary right for the benefit of the dominant owner’s land and if, it is registered correctly, binds the successors in title of the servient owner (please see section 187 Law of Property Act 1925).

An easement may be acquired by prescription:-

At common law- if it can be shown that the easement has been used since time immemorial. However, following Angus v Dalton (1877) 3 QBD 85 there is now a presumption that an easement has been exercised since time immemorial if there has been at least twenty years’ use.

Under the doctrine of lost modern grant- where there has been at least twenty years’ use (Angus v Dalton (1877) 3 QBD 85. The use of the easement must have continued for twenty years but not necessarily the twenty years immediately before the right is challenged in court.

Under the Prescription Act 1832.- the twenty years’ use must be the immediate twenty years before the court action that crystallises the easement. An interruption of the use of easement of up to one year is disregarded (section 4, PA 1832).

The requirements for prescription are the user of the prescriptive easement must carry out the act repeatedly, openly and without the servient land owner's permission. The right claimed must be one that could have been lawfully granted. The use of easement does not need to be constant but must be continuous.

To prevent someone from gaining a permanent prescriptive easement over your property, there are two primary methods your conveyancing solicitor should advise your of: (a) at least temporarily block the hostile use, such as by erecting a fence to break the continuous use, or (b) sue the trespasser for an injunction to stop the non-permitted use.

Prescriptive easements can cease to have an effect if the benefiting land is sold and the purchaser was not made aware of the prescriptive easement or, alternatively, does not exercise the act within one year. Therefore when notice of a prescriptive easement is given it is important that your solicitor registers the same against the dominant and if possible the servient land.

Disclaimer: this is an introductory guide and is not a definitive source of legal information.

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