The Impact of Rights on Development Land: Part 1 – private rights and prescriptive easements

This article is one in a series looking at the impact of rights over land intended for development. In this article, we will focus on private rights over land.

What are private rights over land?

Private rights over land are known as easements and are rights to use another person’s land for a particular purpose. Easements must have the following characteristics:

1. There must be dominant land (land which enjoys the benefit of the easement) and servient land (land over which the easement is exercised);
2. The right must be linked to the dominant land and not simply for personal benefit;
3. The dominant and servient land must be owned by different persons. This means that a person cannot claim the benefit of an easement over their own land; and
4. The right must not be too vague or wide. For example, a general right to wander at will without a given purpose will not be regarded as an easement.

Examples of easements include:

• A right of way along a private road.
• A right to lay water pipes through a field.
• A right of light for a building.

Why should I be concerned about private rights?

Easements ‘run with the land’ which means that if your land is subject to a right of way and you sell your land to someone else such as a developer, they will purchase the land subject to those rights.

Depending on the type of right and its extent, private rights can prevent or complicate development and may impact on the value of your land. For example, if a right of way cannot be relocated and needs to be accommodated as part of a development, this will take additional time and cost to rectify.

How are private rights over land created?

There are two common ways that private rights can arise:

1. Express grant – rights can be expressly granted by the servient landowner for the benefit of the dominant landowner. These rights are often documented within a Deed of Easement or contained within a Transfer/ Conveyance.
2. Prescription – rights can arise in certain circumstances where the dominant landowner has exercised rights over the servient land “as of right”, that is, without force, secrecy and permission for at least 20 years

How do I know if my land is subject to private rights?

Often landowners will be aware of whether their land is subject to rights of way or rights of entry. However, landowners may be unaware of whether their land is subject to private rights to lay use or maintain services (e.g. drainage, water or gas).

If your land is registered at HM Land Registry, the Title Register will record any rights that are registered. This will identify most express grants and rights claimed by prescription.

If you land is unregistered, your Title Deeds will contain details of any express grants.

However, it is important to note that the Title Register/ Title Deeds will often not identify:

• prescriptive rights; or
• certain rights known as ‘overriding interests’- these are rights which the land is subject to but are not recorded on the Title Register/ Deeds. For example, this would include easements which are obvious on a reasonably careful inspection of the land such as a right of way.

Therefore, it is important to also carry out an inspection of the land and think about whether there are any signs of any third party exercising any rights over the land in addition to checking the title. For further on the ground things to consider please see our related article.

Can an easement over land be terminated?

Yes, an easement can be released via a Deed of Release between the servient landowner (the party subject to the easement) and the dominant landowner (the party benefitting from the easement). However, the dominant landowner benefiting from the easement may require payment in return for the release or for an alternative right to be granted. The Deed of Release must also be registered at HM Land Registry so that the title register can be updated.

It is important to note that a Deed of Release may not be the best solution, as making contact with the beneficiary of an easement might hinder your ability to obtain title indemnity insurance. As a result, you should seek legal advice before taking any steps to terminate an easement.

An easement can also be released impliedly in some circumstances and a solicitor will be able to advise you if it appears that any easement has come to an end by the conduct of the parties or the surrounding circumstances.

What should I do if I think my land is subject to private rights?

If you are considering selling your land for development, it is important that you appoint a solicitor early on in the process to advise whether your land is subject to private rights and if so whether the rights are significant and likely to be material in respect of the proposed transaction/ development.

Further and more detailed information about other elements of strategic land can be found here.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.