Easements vs Covenants: A Plain-English Guide

The terminology used in conveyancing is rooted in historical land law. The terms easement and covenant can both be traced back to being used in the 1300s. So, what is meant by these terms?

Simply put, an easement is a proprietary right attached to land which allows the owner of one property to exercise rights over another. This could be a right of way over a piece of land, or rights relating to drainage.

A covenant is a legal agreement or “promise”. These are typically found in property deeds and restrict how the land can be used.

Easements

An easement is created by a party granting a right over their land for the benefit of another. The easement is recorded in a Deed, typically a Deed of Grant. This is then binding on the owner and future owners of the land permanently.  The land that benefits from the easement is known as the dominant tenement (benefiting property), while the land burdened by the easement is known as the servient tenement (burdened property).

The easement must benefit the dominant tenement and burden the servient tenement. These must also be different people; you cannot grant a right to yourself.

There are many different types of easements we come across in conveyancing transactions. These can vary from the right to use a shared driveway to rights to use drains and service media at a property. A property affected by easements, either with the benefit or burden of the land, is not necessarily a bad thing; the easement might be necessary for the normal use and enjoyment of the property.

Our role as solicitor is to ensure the property you are purchasing/selling has the necessary easements to use the property.

Covenants

In a typical conveyancing transaction, we refer to the title to check if there are restrictive covenants affecting the legal title. These are usually found within the Charges Register of the title and can vary in what they prescribe.

Legally, covenants are generally categorised as either positive or restrictive. A positive covenant is one which might require someone to do something, for example maintain the boundary fences. Positive covenants do not usually pass automatically (in freehold land) to future owners. However, there are legal mechanisms that may make successors contribute towards obligations in certain circumstances. An examination of the title deeds is important to establish this.

A negative covenant is one which restricts what a person can do, and these covenants do bind the land. An example of a negative covenant is one that is worded to limit the number of properties that can be built on a plot of land or a very common example you are not permitted to sell alcohol or intoxicating liquor from your property.

As your solicitors we will examine the title to check the covenants do not affect your intended use. You may be intending to purchase property to build a granny annex, but the title might contain a restrictive covenant limiting the property to only one dwelling on the plot of land. Clearly this would limit what your intended use is, and you would need to consider if you proceed with this purchase.

Covenants can be breached, either by yourself or previous owners. Again, we examine the title and raise enquiries to establish if there is a breach and, importantly, how we can resolve the situation. Breaching a covenant can have legal consequences. Using the example above relating to the granny annex: you decide to proceed with the purchase and build the annex. However, your neighbour who has the benefit of the covenant decides to take legal action and enforce the breach. The result could be you being ordered to remove the annex, compensation for a breach and a large legal bill. 

It is always important to read your covenants and let us know if any might affect your intended use of the property. As they say forewarned is forearmed.

Why do easements and covenants matter?

Easements and covenants can affect a property’s value, future development potential and even mortgageability. Understanding them before exchange of contracts can help avoid costly disputes later.

They are created when land is transferred to the first owner of the property. As many properties were built a number of years ago they are affected by easements and covenants that have been in existence for many years. Although these rights and restrictions were relevant when created, they may appear less so today. For example, a right of way along the rear for the coal man may no longer be used or a covenant restricting selling alcohol no longer relevant.

However, these do not simply disappear because of irrelevance or their age. They will still continue to bind the land.

When we are checking a legal title we are checking the title to see if the property is affected by easements or covenants. Many properties are affected by both. We will advise you on these during your matter and work with you to advise how the easement or covenant might affect your use and enjoyment of a property.

Can these be removed?

An easement can be removed by a Deed but this will usually require the agreement of both the parties with the benefit and burden of the easement.

Removing a covenant is generally more complex and may require an application to the Upper Tribunal (Lands Chamber). This is a specialist area of law and is outside the scope of this summary. Further information can be found in our previous articles:

• Real Estate: Restrictive Covenants Affecting Land | Pinney Talfourd Solicitors
• Restrictive Covenants | Pinney Talfourd Solicitors)

Easements and covenants are common features of property ownership and can have a significant impact on how a property is used. While many cause no practical difficulties, it is important to understand their effect before committing to a purchase or development project.

As part of the conveyancing process, we carefully review the title and advise on any rights or restrictions that may affect your plans for the property. By identifying these issues at an early stage, we can help you make informed decisions and avoid potential disputes in the future.

If you have any questions about easements, covenants or any aspect of a property transaction, our conveyancing team will be happy to assist.

How Pinney Talfourd can help

Property rights and restrictions can be complex, but understanding them early helps ensure your transaction proceeds smoothly and without unexpected surprises. Our Residential Property team is on hand to review your title deeds thoroughly, helping you make clear, informed decisions about your property.

If you have any questions about easements, covenants, or any aspect of buying or selling a property, please contact our team on 0800 011 1195.