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Easements

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Pro Bono Choir

Pro Bono Choir

Claire McNamee, Conveyancing and Non-Contentious Lead looks at recent case law involving easements and potential considerations for a conveyancing solicitor.

Are easements an issue?

Research by the Society into the causes of conveyancing claims revealed that claims relating to easements accounted for 29% of the sample of 102 conveyancing claims in the period between 2018 and 2023. The 2024 data indicates that this figure continues to track.

Recently, there have been several cases involving easements which are worth consideration for solicitors in practice which relate to rights of way and septic tanks and soakaways, which account for around 30% of the claims that relate to easements.

Leeper v Murphy [2024] NICh 3 concerned a disputed easement involving a septic tank and soakaway.

Background

By way of brief background, in or around 1990 a part of a parent folio had been gifted to the Leepers. On the death of the original transferor and grantor of the easement, Mr Murphy inherited the remainder of the parent folio. A drawn-out dispute followed. An Order had previously been made in the County Court in 2019 granting a right of entry, maintenance, repair and replacement in respect of drainage to the Leepers, who also were to comply with a covenant to cause as little damage as possible and make good any damage caused in exercising their rights under the easement. The easement in this case also was subject to relevant NIEA consent and building control approval.

Upon a physical excavation in 2020, it transpired that the pipes extended further than initially assumed and other issues were revealed regarding function and comingling of waste and stormwater. It was suggested during the case that some of the original installation works had potentially been carried out by the original owner of the parent folio who was the father of Mrs Leeper, and they may not have been in accordance with the easement that had been granted at the time of the transfer.

It was held, in order to meet the intention at the point of the original grant that an easement should be granted that was compliant with NIEA requirements which had inevitably changed over the passage of time. An expert was appointed to design and oversee this.

Takeaways for practitioners

From a conveyancing perspective, it highlights the risks involved in family transfers where rights need to be granted or reserved. In considering those also a holistic view is needed of all the circumstances, such as with a septic tank or sewerage system where there may be flooding or environmental considerations. All parties need to be clear at the point of transfer of exactly what rights are involved so they can be documented accurately. It may involve a professional mapper so that it can be clearly understood by all and registered. For future transfers, especially where a lender is involved, there is a risk where the easement isn’t correctly in place in certifying title as good and marketable referenced in sections 4.1.1.2, 5.4.1, 5.5.3.3 and 6.8 of the UK Finance Lenders’ Handbook. Other considerations include ongoing practical, maintenance and insurance considerations. Whilst future requirements can’t be predicted, scope for potential changing regulatory requirements may also need to be factored in.

Hemel v Moy Furniture Ltd [2024] NICh 5 related to the nature and extent of a right of way.

Whilst the existence of a prescriptive easement under the doctrine of Lost Modern Grant was not in dispute; the issue was whether the previous use was commercial or residential. It was determined that the use which established the easement was to access a dwelling. Also, of note in this matter, was that whilst the plaintiffs had extended the width of the right of way; the prescriptive easement was limited to the original extent of the right of way which was significantly narrower.

When acting in any purchase of land where there is an easement, it is key to consider what a client’s plans are for the land and if there are changes anticipated; and ultimately whether an existing right of way, whether prescriptive or otherwise, will be impacted by future use which is outside the original use of the right of way. The key consideration is whether any proposed future use is material in nature rather than a change or intensification in use, being mindful of any risk of the easement being extinguished on that basis.

McElwee v Fulton R/11/2022 was a Lands Tribunal case relating to an application to modify a right of way.

Background

The applicants owned the servient land and had received planning permission for a substantial residential development of 201 properties. The planning permission required a rerouting of the existing right of way which the respondent enjoyed. The request was refused by the respondent, and an application was made to the Lands Tribunal under the Property (Northern Ireland) Order 1978 to modify or extinguish impediments under Article 5.

The Tribunal concluded that the respondent’s right of way was not exclusive and there was no provision for the exercise of any control over the surface of the lane, the boundaries, or the abutting properties by the respondent. Over time, the laneway use had increased with the construction of a further four properties from the original two. The Tribunal also considered, although the case did not turn on this, that if the right of way was not altered, around 11% of the land zoned for housing in the area would be rendered sterile. It was determined that the proposed rerouting still permitted access for the dominant tenement but not altering the right of way would be a significant impediment to the applicants use and enjoyment of the land. The Tribunal ordered the modification of the right of way subject to a satisfactory alternative right of way being arranged.

Takeaways

The matter shows the considerations by the Tribunal when determining whether to modify a right of way. Where development is concerned, this is also something for a client to consider if easements need to be changed and any effect this may have in terms of cost.

Key takeaways regarding easements

Claims relating to easements evidence a significant risk to solicitors in practice at nearly one third of the sample obtained by the Society for both the period between 2018 and 2023 and in the 2024 sample.

Where a matter does or will involve easements, it is worth considering whether any specific professional services, such as surveying or professional mapping are required. A client is best placed to provide a full picture of what they want from the land they are due to purchase or transfer, and should bear the responsibility for preparing any maps (if a professional is not instructed), especially where new easements will be created. It is important to obtain a full picture of what is intended, such as future development plans.

Detailed attendance notes are also key to demonstrate what is intended at the time of transfer and, especially where family transfers are concerned in order to fully understand the risks that are involved to mitigate future disputes regarding the nature and extent of any easements.

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