What rights of way and easements mean when you buy a property

An easement is a right that one piece of land enjoys over another. Rights of way are the most common, but easements also cover running drains, pipes and cables, rights of light and rights of support. The land with the benefit is the dominant land and the land carrying the burden is the servient land.

Where easements appear on the title

On registered land the benefit is entered in the property register of the title that enjoys it, and the burden is noted in the charges register of the title that carries it. Checking both sides is the work. A right your seller describes is only as good as the entry on the servient title.

Since 13 October 2003, an expressly granted or reserved easement over registered land has to be completed by registration to operate at law. HM Land Registry’s guidance on easements says the grant or reservation will not operate at law until the registration requirements have been met, and that until then the easement is only equitable. A right written into a 2015 transfer that nobody registered is therefore not yet a legal easement, which is worth checking on newer estates where plot transfers may not have been registered properly.

Express, implied and prescriptive

Express easements are written into a deed and are the easiest to check. Implied easements arise without anyone writing them down, either under section 62 of the Law of Property Act 1925, which carries existing rights and privileges along with a conveyance, or under the rule in Wheeldon v Burrows, which can pass rights already in use to a buyer of part of a property.

Prescriptive easements arise from long use. All three routes, at common law, by lost modern grant and under the Prescription Act 1832, require use for at least 20 years. The use must be without force, without secrecy and without permission, and use while one person owns both plots does not count.

One point is often muddled. Under the 1832 Act, the 20 year period stops a claim being defeated merely by showing that the use began earlier. It is the 40 year period that makes the right absolute and indefeasible, unless the use was enjoyed by written consent. The table below sets the three types side by side.

Source: HM Land Registry practice guides 52 and 62.

The easement that appears nowhere

HM Land Registry’s guidance on easements claimed by prescription says there is no requirement for register entries to be made for them. A neighbour can hold a perfectly good right of way across your garden with nothing recorded against either title.

Such rights are usually overriding interests, so they can bind a buyer even though the register is silent. The exception is narrow. HM Land Registry says an easement can cease to have effect on a sale only where the buyer had no actual knowledge of it, it was not obvious on a reasonably careful inspection of the land, and it had not been used in the year before the sale. It does not help against rights that were already overriding interests when the Land Registration Act 2002 came into force on 13 October 2003.

That exception is the reason the inspection matters more than people assume. A worn track across the lawn, a gate set into a fence, a manhole cover in the wrong garden and a path that stops dead at your boundary are all things a careful buyer is expected to notice.

Private rights and public rights are checked separately

A private right of way belongs to identified land and is recorded against titles. A public right of way belongs to everyone and is normally recorded on the local authority’s definitive map, not on your title. A clean title register tells you nothing at all about a public footpath crossing the garden, and the two have to be checked in different places.

What to establish before you buy

Ask for the title register and plan of the property you are buying. Where the right matters, ask for the register and plan of the land it crosses too. Confirm that access to the property runs over a registered legal right rather than a track everyone has used for years. Ask who maintains a shared drive and who pays, and ask to see where that is written down. Easements sit alongside other burdens on a title, such as restrictive covenants, so check for those too. If the plan and the ground do not match, our guide to what a title plan really shows in a boundary dispute explains why that is not automatically a defect.

Where the right you are relying on is prescriptive, consider whether to apply to register it. You will need a statement of truth or statutory declaration setting out at least 20 years of continuous use as of right. The entry guarantees the right for the purposes of the statutory indemnity, and a notice on the burdened title protects it if that land is sold. HM Land Registry will limit the entry to the use the right actually grew out of, so a claim to drive a lorry over a footpath worn by walkers will not be registered as drafted.

If a property is reached over someone else’s land, the question to put in writing is not whether there is access but whether the access is registered against the servient title. On a landlocked plot, that single entry is the difference between a house and a field, and it is the first thing to settle. Access and private road problems are among the catches in our guide to buying in the countryside. Before you instruct, see what conveyancers charge and tell them at the outset that access crosses a neighbour's land.