How to remove an easement from your property in the UK

When it comes to privately owned land, you need to know what your rights are, what parts of the land you can use and where exactly you can go. You don't want to be caught trespassing, annoying the neighbours, or worst case scenario, ending up in legal trouble.

But what do you do if you need to pass through someone else's land in order to access your own property? There's no magic wand to zap you from one place to another. And that's where easements come in. Giving you the legal right to access someone else's land for a specific purpose.

But because easements apply to the land, not the owner, that makes them permanently binding for current and future landowners. What if you've just bought a property with an easement and you want to remove it? How do you get rid of something that's legally permanent?

Fortunately, there are a number of ways to remove an easement, and we're going to take you through them.

What is an easement?

An easement refers to the legal right of one landowner to use another person's land for a specific purpose. Because easements are usually attached to the land and not the owner, this makes them binding for both current and future landowners. The main examples used in the UK are rights of way, rights to run services, rights of overhang and rights of support.

However, they're used for a number of different reasons, such as:

• A private right of way to pass or re-pass across privately owned land or along a privately owned road.
• The right to park a car within a specific area of neighbouring land.
• The right to draw water from a spring or watercourse on neighbouring land.
• When a utility company needs permanent access to maintain utility infrastructure under private property. The property owner will usually get a one-off payment when the utility infrastructure is installed, and the company will need to give reasonable notice before accessing the property.
• A shared driveway.

Rights of Light

A Rights of Light easement gives one property owner the right to enjoy light passing over the neighbouring land and through defined apertures in their building (these are typically windows).

The circumstances needed to create an easement

Easements cannot just be assumed through use; they need to be created under certain circumstances in order to be valid, including:

• There must be a servient and dominant tenement.
• The easement must be beneficial to the dominant tenement.
• The dominant land and servient land must be under separate ownership.
• The right must be able to form the subject matter of a grant.

All easements must be granted by deed, or it must be possible to grant them by deed. As such, all landowners involved must have the capacity to grant and acquire the legal right. The easement must also be clearly defined. Any easements created shouldn't cost the servient landowner any money, and it also mustn't put them out of possession of their land.

Servient land versus Dominant land

An easement is a right that benefits a piece of land, which is known as the dominant land. It burdens another piece of land owned by someone else, known as the servient land. For an easement to be put in place, the dominant land and servient land cannot be in common ownership.

For example...

A farmhouse is landlocked by other land and property not belonging to the same person. The owner of the farmhouse needs to pass through these to access their own property. They'll be able to do this through an easement. In this situation, the farmhouse is the dominant land, while the other property is the servient land.

Equitable versus legal easements

Legal easements are granted by deed from a freehold or leasehold estate where the land is registered. To operate by law, legal easements must be registered over both the land benefitting and being burdened by the easement.

If the easement isn't registered, it exists as an equitable easement. For example, a contract might be entered into to grant an easement, but it was never fully completed.

How are easements created?

Easements are most commonly created by deed and where it's only possible to access one plot of land by passing through another person's land. There are, however, other ways to create an easement, such as:

Express grant

An express grant is created when a landowner sells part of their property but keeps some rights over the land. This is usually a private right of way, but for new housing developments it may include the ability to maintain utility infrastructure.

Prescriptive easement

Prescriptive easements are created when someone has been using land in a specific way for over 20 years. It must be continued use and as of right (meaning without force, without secrecy and without permission). They can be more difficult to remove because they're created through habitual use rather than a formal deed or agreement.

Implied grant or easement of necessity

An implied easement may exist out of necessity or under an implied grant. It could also be implied under Section 62 of the Law of Property Act when land is sold and it's necessary to imply it. Both the buyer and the seller need to agree that an easement should be created at the time of the sale.

For example, an easement of necessity exists if the only means of accessing the land sold is by going over the retained land. When a landowner gets rid of part of their land, any privileges given from that section of land may be converted to legal easements, unless the transfer document expresses otherwise. The reverse transaction doesn't work, however. If you want to convert the retained land to easements, you have to reserve the privileges of the land at the time of the transfer.

Easements versus Licences

The difference between an easement and a licence is the timeline. Any easements created are binding on all future landowners, while a licence doesn't attach to the land, so is only binding for the current landowner. A licence is automatically revoked when you sell the land and your old neighbour will have to ask for a new licence from the new landowner.

How to remove an easement from your property in the UK

In most instances, easements created by deed usually can't be removed other than by deed, even if they haven't been used for a long period of time. Though easements are permanent, there are ways you can extinguish an easement if it's negatively affecting the enjoyment of your property.

Abandonment

An implied release often happens if the easement hasn't been used for a long period (more than 20 years) and is therefore considered abandoned. To prove abandonment, you need to establish the intention of the dominant servient to abandon the rights. You also need to prove failure to act which further implies that the dominant landowner doesn't need or want the easement. However, this needs to be a permanent rather than temporary abandonment.

Merger

If the dominant and servient land come into common ownership, the easement can be extinguished because you can't have an easement over your own property. One person needs to own the entire plot of land to remove an easement through a merger. If the owner only has a portion of the land, the easement will stay in place.

End of Necessity

If an easement exists out of necessity, that easement can be removed if the necessity ends. For example, the easement may be in place to allow right of way to a landlocked property, but if a new public road is built the easement might not be needed anymore, so may be removed.

Recording act

In some cases you can remove an easement under the Land Registration Act.

Condemnation

If the government repossesses the property through eminent domain, the easement will usually end.

Adverse Possession

If you're able to prove you've been the exclusive user of someone else's land, you may be able to claim it as your own private right and as such remove the easement.

Demolition

An easement may be removed if the benefiting property or land is being demolished.

Express release

When the dominant landowner grants an express release to the servient owner by deed, this can remove an easement. The easement holder can also voluntarily release their rights via a written agreement.

If you're unsure and need further information, it's always better to seek the advice of an expert.

The Land Registration Act

Registration at the Land Registry officially records property ownership in England and Wales, and it's compulsory to register any unregistered land at the Land Registry once it's been sold. The Land Registration Act 2002 broadened the scope of what triggers the obligation to register land for the first time, including mortgages.

The Land Registration Act was designed to provide security for landowners, protecting them from fraud and adverse possession (otherwise known as squatter's rights). It also provided a clear way to prove evidence of ownership which makes it much easier to buy and sell property. Having all the deed information also makes it much easier for conveyancers, sellers and buyers to ascertain who owns the property, the land surrounding it and what benefits and burdens (including easements) are attached to the land.

How much does it cost to remove an easement?

The cost to remove an easement may vary from case to case. It largely depends on how the easement is removed and how complicated it is to remove it. Legal fees also need to be factored in, especially if the case to remove an easement is contested. Paying compensation to the easement holder may also need to be taken into account.

Selling a property with an easement

Though it's not necessarily bad to have an easement on your property, selling a property with an easement can come with its fair share of challenges.

Prospective buyers may be reluctant to buy a property with the restrictions caused by an easement. For example, an easement giving right of way could mean you face disruption from the people exercising that right. If buyers are looking for a private, peaceful property, this may put them off.

It's really important to be transparent and upfront about the existence of an easement, otherwise it causes delays further down the selling process.

Properties with an easement may also be lower in value, especially if the easement significantly affects the use and potential uses of the property. For example, if the easement limits any developmental potential, this could affect the value significantly. It's important the property owner accounts for any limits or restrictions caused by easements in the asking price.

If you're unsure about the value of your property, you can use our quick Online Valuation Tool to search for valuations in your area or areas you're interested in moving to.

Summary: Removing an easement with ease

Though easements are generally permanent for both current and future landowners, there are a number of different ways to remove them. Depending on how and why the easement was created, what rights the easement offers and how long the easement has existed, you can go down a variety of different paths to remove an easement from your property.

Though having an easement on your property may seem like a real hassle, that's not always the case. In fact, for some landowners, the easements may just be a part of their day to day lives. Issues may begin to arise when you're trying to sell and you're hoping for a higher selling value, or buyers are being put off by any easements in place.

In these cases, removing an easement may be the best way to go, and it's always best to seek expert legal advice to ensure you're going down the right path.

And if you're ready to sell, make sure to choose the right estate agent to best suit your needs. You can compare estate agents quickly and thoroughly using our Estate Agent Comparison Tool today!