Property lawyer, Terese Kingman, takes a look at easements and profits a prendre
What is an easement?
An easement is a right to use land belonging to a third party in a particular way or to prevent the owner of that land from using it in a certain manner. An example of an easement is a right of way.
Can someone have an easement over their own land?
No. There must be two parcels of land owned or occupied by two different parties. One parcel of land will have the benefit of the easement and the other parcel will bear the burden of the easement.
If someone has the right to cross another person’s land by virtue of an easement, can they prevent the owner from using that land?
No. An easement is a right over someone else’s land, not a means of preventing the owner of the using the land.
How can an easement be granted?
Easements can be created by deed of grant. So, for instance, if a land owner needs a supply of water and the only way of gaining it is to run water pipes through a neighbour’s land, a deed of grant can be prepared to allow the supply of water through a defined channel of pipes across the neighbour’s land. The person who has the benefit of this easement would normally be responsible for the cost of preparing the deed of grant as well as the maintenance costs of the pipes and cost of the supply of water. The person who is granting this right must not be involved in expenditure.
Can an easement be enforced against a future buyer?
Yes. If the person with the right of way over his land sells that land then the right of way can be enforced against any future owner.
Can an easement be granted for a fixed duration?
Yes. Fixed term easements are commonly granted to allow access whilst a neighbouring property is being built.
How can an easement be terminated?
There are several ways of extinguishing easements. An easement can for instance be extinguished by Act of Parliament. Alternatively, the owner of the land with the benefit of the easement can execute a deed releasing the owner of the land from the burden of the easement. And if both parcels of land come into the ownership and possession of the same person, the easement is extinguished.
Does an easement allow a person to take any natural produce or soil from the land?
No. This is known as profits a prendre. An easement is a right to use land; it’s a privilege without a profit. A profit, on the other hand, is a right for a person to remove products of natural growth from another person’s land. Examples include fishing and shooting rights.
Is there any other legal entitlement to enter another person’s land?
Yes. Under the Access to Neighbouring Land Act 1992 a person may gain access to neighbouring land in order to carry out essential repairs to his own property, upon appropriate notice. If access is refused then a court order can be applied for.
If you have any queries about any issue raised in this article please contact Terese Kingman at Slee Blackwell Solicitors, Lime Court, Pathfields Business Park, South Molton on 01769 575982 or by email at [email protected]