Easements are of practical importance to a large number of landowners. The rights can be fundamental to the enjoyment of property. Their effective operation is also crucial to the successful development of land for housing.
What is an easement? An easement confers the right to one landowner to use the land of another in some way, or to prevent it being used in a certain way. The most commonly used easement is the one that allows the use of underground services (water, drainage, gas electricity, TV cables etc.) of a property to pass beneath the land of one or more neighbouring properties. People will also be familiar with a right of way (the right to cross the land of another), which is also an easement.
The Law Commission has conducted a report on Easements, Covenants and Profits à Prendre, and an interesting recommendation that has arisen from the report is the idea that where an easement has not been used for a continuous period of 20 years, there should be a rebuttable presumption that it has been abandoned.
Whilst the recommendation has attracted some criticism, it has been suggested that the proposals prejudice landowners who have not been able, perhaps through ill-health, to exercise their rights. Some commentators have indicated that there should be a different rule for interests that are, by their nature, exercised infrequently (for example, a right to haul timber).
The Law Commission has responded, stating that neither example gives rise to concern; a presumption of abandonment would, in both these cases, be relatively easy to rebut.
The other concern, by contrast, is the difficulty of proving that an easement has not been exercised. The Law Commission has responded in stating that the presumption of abandonment is the "re-opening of a narrow door, not of floodgates". It will still be for the applicant to prove continuous non-use for a specified number of years; and even then the presumption can be rebutted.
On 18 May 2016, following the Queen's Speech, it was announced that the Government would bring forward proposals to respond to the Law Commission's recommendations in a draft Law of Property Bill.
The May 2016 announcement has seen a rise in the number of aged and existing easements and covenants being filed at the Land Registry particularly for service providers such as water and electricity companies.
If you think that your land may be effected by a pending registration or are concerned what the impact of the recommendation may be for an existing easement, please contact our office to discuss with one of the team or email firstname.lastname@example.org