A guide for the perplexed — easements over land

What is the legal position of a right to pick fruit from an orchard? A right to use a path on a neighbor’s plot? A right to repair cars on part of a plot? Or a right to lay an electrical conduit under a particular plot? These questions illustrate the natural uncertainty of anyone unfamiliar with property law. Here is a short explanation for the puzzled reader.
The Land Law provides that “an easement is a charge over land for a benefit that carries no right of possession.” In other words, it is a right to use or enjoy land, but the beneficiary has no right to possess it permanently. An easement is a proprietary right, but it is not the same as a tenancy or a right to derive economic benefit from someone else’s land.
It is important to know that a land easement need not be registered at the Land Registry, and the beneficiary need not pay for it. Owners should therefore pay attention to all the right’s characteristics and protect their property.
An easement may benefit an individual, a group or the public at large, for example a right of way along a public path. It usually lasts indefinitely unless the landowner and beneficiary agree otherwise. In addition, the court may extinguish or cancel it, or alternatively vary it, at the request of an interested party or the Attorney General.
An easement gives its beneficiary a right over someone else’s land, so the landowner may not interfere with its enjoyment. Given the nature of the right, courts interpret it narrowly, as quite different from a tenancy. The landowner will generally be prevented from doing anything that interferes with the beneficiary’s exercise of the easement.
An easement is commonly understood to arise in one of four ways: by agreement, when two parties agree that the landowner will give the other a right to enjoy the land; by law, arising under a will, judgment or other legal provision; by necessity, when a physical or practical necessity requires an easement so that a person can exercise their rights and no alternative exists, for example where a person’s parcel is enclosed within another’s and can be reached only by crossing that other parcel; or by prescription, where prolonged use gives the user a right to continue using the land.
Accordingly, a right to pick fruit from another person’s orchard is not an easement but a contractual income-generating right, not a right in land. A right to repair my garage’s cars on part of a neighboring plot is not an easement but a right to use particular land that may have a different proprietary character and different tax implications. An oil company’s right to run a pipeline beneath my plot is an easement in every respect.
You can prevent an “easement” from being established over your private plot — The Land Law provides that written notice from the landowner to someone using and enjoying the land, as well as public notice objecting to such use, interrupts the thirty-year period that turns continued use into an easement. Another way to safeguard rights over private land is to fence the plot clearly, preventing pedestrians or vehicles from crossing it. Where someone needs to use your land, you may require them to sign an undertaking that no right in land or other proprietary right is being granted, and an acknowledgment that the landowner may revoke permission at any time and/or block the route.