Easements & Like

Easements: An easement is a right enjoyed by  one piece of land over another land. The most well-known categories of easements are rights of way, rights for the passage of services such as pipes, wires, or drains, and the right to use an area for recreational purposes. Categories of easements are ever-evolving and are not close.

For an easement to exist, there must be two pieces of land that benefit and that over which the rights are exercised. The former is the so-called dominant tenement, the latter the servient tenement. The rights must benefit the lands in such a way that a person’s rights or the occupiers of land are irrelevant. An easement may only exist where it enhances the dominant tenement.

An easement cannot exist by itself. There is a separate category of so-called profits, more details of which are set out below. However, an easement must be for the benefit of the dominant tenement in the sense of enhancing its amenity and convenience.

An easement must be sufficiently certain as it is capable of being described in a deed of grant. New rights will only be developed if (inaudible) existing right. In a famous case, the right to use shared gardens or a square in common was held to be a sufficient form of easement.

A right of way will permit a certain extent of use. It may, for example, be by (inaudible) pedestrian. The circumstances will usually imply limitations on, for example, the extent of the use. If, for example, an adjoining owner who uses the right of way for occasional purposes access for a single dwelling were to develop an entire housing space, then it is likely that the right of way would not be available so that they are greatly enhanced and increased use.

A right of light can only be enjoyed for the benefit of a particular window. It is in practice hard to prove acquisition. The extent of the right enjoyed is usually limited, so that it is very difficult to establish a right such as to prevent an adjoining owner overshadowing.

Profits are rights to take something from the land, such as turf, minerals, fish, game, etcetera. Property need not be apparent or attached to a dominant tenement in the same way as an easement.

The common forms of profit include the following: Supporting rights, fishing rights, right to take turf, rights to graze animals, rights to take water.

Easements may be acquired in a number of ways. They may be granted by the owner of the servient tenement to the dominant tenement in a deed of grant. This would frequently happen, for example, when a unit in a multi-unit development is sold. They happen when a piece of land is sold by an owner who retained adjoining land over which a right of way, a right of services is acquired.

Equally, where land is sold, the seller may reserve unto himself for the benefit of the retained land easements over the land sold. In this case, the courts will interpret the grant against the interest of the seller, and the rights must be very clearly accepted and reserved. There are certain technical issues with the reservation of rights, which require particular care in the sale deed.

Apart from the express grant or reservation of easements in a deed, the law may imply easements or rights where this is necessary. Where the grant of easements is necessary to give effect to the common intention of the parties or is necessary, for example, to give access to retained land, then the law will imply the necessary easements based on the common intention of the party.

However, the position is interpreted against the interest of the grantor or seller, so that generally, less rights are expressly reserved; only easements and rights that are strictly necessary will be implied. In contrast, it is presumed that the seller is intended to give the full benefit of the sale to the buyer, so that a much wider category of easements and rights as are necessary to give effect to the purpose of the sale maybe implied.

Certain existing easements which attach to land transfer on its sale. The Conveyancing Act deems to be included all easements and quasi-easements and profits attaching to the land on the occasion of a transfer or grant. A similar principle applies to so-called quasi-easements. These are easements which are exercised by the seller when land is in common ownership. They are not easements because the seller owns the entire land.

Under this principle, such easements or quasi-easements are deemed to be included in the sale or transfer as are necessary for the reasonable enjoyment of the land. The rights must have been continuously exercised by the seller on a permanent basis in a manner that is apparent and discoverable. It must be necessary for the reasonable enjoyment of the land. It must be used for the benefit of the sold part in respect of the retained part.

Easements may be acquired by long use in much the same way as rights may be acquired by squatting. There are a number of methods of acquisition of easement, the most important of which is mentioned below. In order to be so acquired, the easement must be used as a right.

This means it must be exercised as if it was enjoyed as a right as opposed to by license or consent of the servient owner. The use must have been open without force. In effect, the servient owner must have acquiesced in the use.

The use must have been continuous as opposed to intermittent. A likely position in England, or a likely position in the Republic of Ireland, it is possible for easements to be obtained against limited and leasehold owners. This reflects the significant number of titles in the whole of Ireland held under long leases.

The Methods of Acquisition:

An easement may require a court application to be established. However, commonly where it is shown that the qualification for the easement exists, court action will not be taken unless and until some person attempts to interfere with the easement.

The relevant period is the period prior to the court application. Therefore, there exists a risk that continued non-use of an easement acquired by long use may debar the owner of the dominant lands from asserting it.

The rules as to the requisite periods are complicated. Generally, 20 years’ use is required for an easement and 30 years for a profit. This will suffice to satisfy the technical rules in many cases. The longer periods of 40 and 60 years’ use are required for the definitive establishment of an easement and profit.

Certain periods are deducted in calculating the requisite periods when the owner of the servient lands is under a disability. A disability would be where the owner concerned is unable to take legal action by reason of being of unsound mind, under 18 years, or a limited owner only.

In the case of the longer period leases of the servient lands, more than three years are deducted in calculating time, provided that the landlord resists the claim within three years of the end of the lease. However, there are no deductions for unsound mind and underage in that latter case.

Easements of light are established after 20 years. A notice maybe registered under the Rights to Light Act (NI) 1961. If this is submitted to for 12 months, it prevents the easement from arising.

Easements may be released and terminated in much the same way as they are required. They may be released by a deed or by implication. An implied release may arise where it is shown that there is an intention to abandon a company by prolonged non-use.

Generally, 20 years of non-use is sufficient to raise the presumption of abandonment. However, if it is shown that there is no intention to abandon, the easement may still subsist.

If the same owner acquires both the servient and dominant land, the easement is presumed to terminate.

As in the Republic of Ireland, certain other classes of rights may exist over land. The right of way may subsist for the benefit of the public. The public right of way does not require any dominant land. It is available to a class of the public generally.

Land which is dedicated to the public as a public way is a highway. Highways are adopted by the Department of the Environment under roads legislation.

A highway can be shown to exist by dedication. This may happen by words or act or by implication. The mere failure to stop the public using land is not proof of dedication as a highway. However, if it is used by the public for a long time without interruption, presumption of dedication and acceptance is likely to be implied