Avoiding problems with easements on commercial property

When you own or develop commercial property, the existence or creation of easements can have a significant impact on what you can and cannot do.

Put simply, easements may be rights that you have over neighbouring property but also may be rights that owners of neighbouring properties have over your land.

Such rights may be a right of access or a right to connect into sewers, pipes and other infrastructure under on or over your land or neighbouring land.

These arrangements are common and, in many cases necessary, but they can also lead to highly contentious disputes if they aren’t properly formalised or they are poorly defined.

From our experience of advising commercial landowners, developers and investors, easements are a frequent source of property disputes.

The existence of an easement may be problematic not just through its existence but also its interpretation when the extent, purpose or limitations of the right are unclear or where a development proposal inadvertently interferes with a neighbour’s long-established rights.

Why easements matter for commercial landowners

Commercial property and land in the UK is often tightly connected. Access roads, service pipes, shared car parks and loading bays are frequently used by multiple landowners and it is entirely normal for one business to rely on a neighbouring site for something as simple as the right to drive across it to make deliveries or to access other land.

However, what seems straightforward in principle can cause major problems later if the underlying easements are not clearly documented.

A right of way that once served a single lorry each morning can become a serious obstacle if the neighbouring site expands and begins to use the right of way for heavy or constant traffic.

Similarly, a right of drainage may complicate redevelopment if the route of underground pipes restricts where you can build.

These are the kinds of details that, if overlooked, may lead to costly and time-consuming disputes.

The importance of a clear deed of easement

The best protection against future disputes with respect to rights or easements is a properly drafted deed.

These formal, legal documents can be used to create, abolish or modify easements so long as there is land that will benefit from the easement and land over which the easement is granted.

A vague or poorly worded deed may not correctly grant a specific easement resulting in disputes and costly litigation.

We regularly advise clients to ensure that any new easements, whether granted or obtained, are properly drafted and created by deed and registered at the Land Registry.

This protects both parties and creates certainty for future owners, occupiers or tenants of the land.

The commercial impact of easements

Once granted, an easement is difficult to change or remove. For commercial landowners, this can be particularly restrictive.

You cannot interfere with a neighbour’s easement if doing so restricts or prevents the easement from being enjoyed. This may prevent a developer from rerouting access roads, building over drainage pipes or even installing security gates, without risk of legal challenge.

Courts have taken a strict approach to such matters in the past and practical issues can escalate into full-blown disputes if not managed carefully.

Another common pitfall arises when land changes hands. If you buy a site that was already in breach of an easement, for example, where a previous owner built over a drainage pipe, you could be held liable for continuing that breach and may have the liability and costs to remove work done, reinstall or make good.

Even if the person (whose land has the benefit of a legal easement) agrees to relinquish the easement, this would come at a cost.

 It is, therefore, essential that a solicitor reviews and advises on any easements that may cause an issue for a purchaser of land.

Avoiding disputes and protecting your position

To protect your position and commercial property rights:

• Always seek legal advice before granting or altering rights over your land
• Make sure every easement is recorded in a detailed, registered deed
• Monitor your land for any unauthorised use that could give rise to a prescriptive easement
• Review existing easements regularly, especially before redevelopment or a sale

For advice on easements and commercial property rights, contact Adam Perin in our Commercial Property team by emailing adam.perin@attwaters.co.uk or calling 0203 871 0049