Intensification of an Easement

What Is an Easement?

An easement is a legal right that allows somebody to use land which belongs to another person for a specific reason. Common examples include:

• Rights of way;
• Shared driveways;
• Rights to light; and
• Utility rights (such as pipes and cables).

Easements attach to both the land benefitting from the easement and the land being burdened with the easement. Importantly, the easement is attached to the land itself and not to individuals; this means that any future owners of the land are bound by the easements.

How Are Easements Created?

Easements are made either expressly, impliedly, or by prescription:

Express Grant – these easements are usually created by a written agreement between the parties and are subsequently registered at HM Land Registry, making the easement binding on future property owners pursuant to the Land Registration Act 2002.

Implied Grant – these easements are assumed (i.e. without an explicit agreement) because of the law, necessity, or a shared understanding between the parties.

Prescription – these easements arise where there has been continuous, uninterrupted use of a right for at least 20 years without permission from the owner.

Once an easement is created, it can be varied by agreement, released, or extinguished.

What Is Intensification of an Easement?

It is an established principle that the use of an easement must not exceed the use which was granted or acquired. If the use of an easement is intensified or increased, it can be deemed to be excessive.

The case law on such matters is inconsistent and fact-specific. The courts will consider the circumstances at the time the easement was obtained, the physical characteristics of the land, the type of easement, and the impact on the burdened landowner.

One of the leading cases on excessive use of an easement is McAdams Homes Ltd v Robinson [2004]. The factual background was that the Appellant owned a bakery which had an easement allowing it to use a shared drainage system which passed under the Respondent’s cottage. The Appellant demolished the bakery and replaced it with two large houses. The Respondent blocked the Appellant’s access to the drainage system during construction. The Appellant constructed an alternative drainage system and claimed that the Respondent had interfered with their use of the easement.

The Court dismissed the claim and appeal, deciding that the development of two houses resulted in a radical change of character from industrial to residential use. This case gives two guiding questions that must be answered when considering excessive use:

1. Is there a radical change in character or use of the land with the benefit of the easement?
2. Would the development result in a substantial increase or alteration in the burden on the land subject to the easement?

Where the answer to both questions is “yes”, the dominant landowner’s right to enjoy the easement will end, or at least be suspended for so long as the radical change of character and substantial increase in burden continue.

The principles in McAdams Homes Ltd were affirmed in Stanning v Baldwin [2019]. The Claimant had a prescriptive right of way by foot and vehicle over a track. The Claimant wanted to demolish a residential building and replace it with four new dwellings. It was considered whether this would be an unacceptable intensification of the use.

The Court held that there was no radical change in use, but merely an intensification. This leads to the conclusion that, in the absence of a change in the use of the land, the burdened landowner will have difficulty arguing that an intensification of an easement is excessive.

How This Affects You

If you own a property with an easement, it is important to consider intensification prior to carrying out any redevelopment projects to avoid complications and costs. Investigations into the potential intensification of an easement often include a review of title deeds, plans, and other historical documents.

If there is intensification of an easement, the burdened landowner could be awarded remedies, including an injunction to prevent further intensification and damages.

How Pinney Talfourd Can Help

Our Property Litigation team regularly advises landowners, developers and property professionals on easement disputes, including issues of excessive use, intensification, variation and enforcement. We can assist with reviewing title documentation, assessing the risk of proposed works, and advising on available remedies where an easement has been exceeded.

Contact us on 01708 511 000 to speak with a member of our team today.