These are the most common rights (or more formally easements) that people come across although there are many others – eg parking, support and even light. The law relating to easements is complex and so I am only focussing on the ones generally found in everyday life.
The first thing to say is that one is not automatically entitled to an easement – it might seem obvious to you that you need an easement to gain access to your property but it is not guaranteed. If there is already one in your deeds then in most cases it will attach to the property and does not have to be granted each time it is sold (unless it is a License which is personal).
A Right is formed by Deed, Statutory provision, long usage, necessity (difficult and problematic) or can be implied when a plot is sold off from a larger plot if it then existed “on the ground.” That is often called a Quasi-easement.
Unless it is by deed (or sometimes by statute) there is nothing to say who is responsible for maintaining, paying towards maintaining, whether it is limited in anyway and who can use it. Sometimes this is obvious, though what different persons regard as obvious can vary. It is always better, where possible, to establish a right be deed BUT if the deed is established take legal advice from property solicitors in the UK before trying to get an existing arrangement reduced to writing as sometimes this can prejudice further steps you can take.
An easement that is not by Deed is usually established by 20 years (sometimes 40) usage openly and without obstruction, challenge and payment.
Usually a purchaser will in these circumstances require a declaration confirming the facts and often an Indemnity Insurance Policy to be obtained at the Seller’s cost - these are usually fairly easy to obtain and not terribly expensive. Each turns on its own facts and value but for a few hundred pounds would normally cover a standard house.
At this stage I should just say that whereas rights can be gained in as little as 20 years it can take far longer for a right to be abandoned – there have been cases where a right has been revived after over 100 years. You can’t assume non usage of a right acts to surrender it formally.
It is also important to note that a right benefits the land it is intended to benefit. If you have a piece of land that has, for instance, a drainage right over neighbouring land then, if you buy a further piece of land adjacent to your first piece, that further piece will not have that same right unless it is independently and newly granted.
Maintenance and access (for maintenance) issues can also be dealt with The Access to Neighbouring Land Act which is rarely used to its full extent but the threat of which can often bring round a troublesome neighbour.
Disputes often arise as to whether the current use is what was anticipated by the original parties. It can have been intensified or varied. There has to be common intention (particularly important in easements of necessity). This has very recently arisen in the case of PSC Mills v Estate od PJ Partridge Deceased & L A Partridge where a Right of way was granted over a Track in 1978 (and 1980 for adjoining land) for all purposes in connection with the property as agricultural land. There was also a covenant only to use it as agricultural land. Over the years the nursery expanded to include a shop and tearoom which was also capable of holding a range of activities. The beneficiaries of the right had carried out improvement and maintenance work to the track. The Court held that the use of the tearoom and shop had increased beyond being ancillary to agricultural use and visitor use had increased significantly and the tearoom had become a separate legal entity. 20 years “unlawful” use (see above) had not been established. The use of the track as access to the tearoom and nursery, for non-agricultural purposes was outside the scope of the rights granted and a trespass.
Obviously each case turns on its own facts but this shows how “creeping” development can go beyond what was originally granted and in this case stop the activity and presumably have a very detrimental affect on the beneficiary’s business which apparently was thriving.
This case does however illustrate the care that needs to be taken where rights of way are being enjoyed and a change of activity takes place or has taken place, and when they are being negotiated in the first place.
It also illustrates the point (always good advice) that it is important to get on with your neighbour.
As the old proverb goes “love your neighbour yet pull not down your hedge”!
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