An easement is a legal right to use someone else’s land for a particular purpose, such as a right of way or a right to run drains, pipes and cables across it. A restriction limits what can be done with a property, and the term can mean either a restrictive covenant (a rule about how land can be used) or a Land Registry restriction (an entry on the title that limits how the property can be sold or mortgaged). The most common examples are rights of way, rights for services, and covenants against building or business use. Both easements and restrictions can affect a property’s value and what you can do with it, so your conveyancer will check for them before you buy.
When buying or selling property in England, understanding easements and restrictions is essential. These legal rights and limitations significantly affect how a property can be used or developed. Ignoring them can lead to costly legal disputes, planning delays, or issues with resale.
In this article, Conveyancing Executive Celia Willcock of Kingsfords Residential Property Team explores the most common types of easements and restrictions, and explains why they matter for homeowners, developers, and investors alike.
If you have an interest in property and are touched by any of the issues raised, please contact your local Kingsfords office in Ashford, Cranbrook or Hythe to discuss how we can help.
What Are Easements?
An easement is a legal right enjoyed by one property owner over another person’s land. It allows limited use of someone else’s land for a specific purpose.
Common Types of Easements in England
Right of Way
A right of way allows one landowner to pass over another’s land. This is especially common in rural or suburban areas where access to a public road, may require travelling across a neighbour’s land.
Easement for Services
These easements give the right to run essential services like water, gas, electricity etc across neighbouring land.
Utility companies often hold these rights, but private homeowners may also have them. In practice, utility companies often rely on statutory powers or agreements called “wayleaves” rather than formal easements.
Why It Matters: If the land over which pipes or wires run is disturbed, the owner of the easement can legally access it for repair or maintenance, even if it's on someone else’s property.
Easement of Support
This less common easement ensures that one property provides physical support to another, (typically in semi-detached or terraced homes). Removing a shared wall or altering it could violate this easement. Work to a shared wall may also require notice to your neighbour under the Party Wall etc. Act 1996.
Light and Air Easements
This easement allows windows in a building to receive enough natural light for the room to be used normally. A right to light is often gained automatically after 20 years of uninterrupted use. If a new structure blocks the light, the impacted owner may have a claim, to correct or prevent any breach.
How are easements created?
Easements can be created in several ways. Most are granted in a deed, for example when land is divided and part of it is sold. Some arise automatically when land is sold because the right is needed to use the property, and others are acquired by “prescription” after at least 20 years of open, uninterrupted use without permission. Easements that have not been written down are not always shown on the title register, which is one reason why surveys and questions to the seller are important.
What Are Property Restrictions?
Restrictions are legal limitations on how a property can be used or developed. They are commonly recorded in the title deeds, or as part of planning permission conditions. The word “restriction” also has a specific legal meaning at HM Land Registry, which is explained below.
Common Property Restrictions in England
Restrictive Covenants
These are private agreements that limit how property owners may use their land. Restrictive covenants often remain in place for decades and may include clauses such as:
- Prohibiting commercial use of a residential property
- Preventing the building of additional structures
- Banning certain types of fences or exterior changes
- Banning livestock on site.
Why It Matters: If you breach a restrictive covenant, even unknowingly, you could face legal action and be forced to undo any changes made. Where a covenant is old and the person who could enforce it cannot be traced, restrictive covenant indemnity insurance may be available.
Land Registry Restrictions
A Land Registry restriction is an entry on a property’s title that stops a sale, transfer or mortgage being registered unless certain conditions are met. A common example is a “Form A” restriction, which appears where joint owners hold the property as tenants in common. Others require the consent of a lender, a management company or another third party before the property can be sold. Your conveyancer will check what is needed to comply with, or remove, any restriction before completion.
Planning Restrictions
Before altering a property, you often need planning permission from the local authority. Restrictions imposed through planning conditions might limit the height, appearance, or materials used in construction. (This is commonly the case in conservation areas where the character of a building is often protected).
Listed Building Restrictions
If a property is listed, it’s considered to be of historical or architectural significance. Any alterations, including internal changes, must receive listed building consent. Failing to comply can result in criminal prosecution or forced restoration.
Environmental Restrictions
Properties near protected habitats or flood zones may be subject to environmental constraints. These can for example limit tree removal, land development, or even the use of certain chemicals.
Why Easements and Restrictions Matter
Easements and restrictions can significantly affect the value, usability, and future potential of a property. Here's why you should care:
Impact on Property Value
If a property is subject to numerous restrictions, or allows access by others (such as a public right of way), it may put off buyers and reduce its market value.
Development Limitations
Developers and builders must navigate easements and restrictions carefully. Building over a right of way or violating a restrictive covenant can halt projects, add costs, and may lead to legal action.
Neighbour Disputes
Unclear boundaries or unauthorised use of easements can spark disputes. Knowing your rights - and respecting others - helps avoid conflict and build good relations.
Legal and Financial Consequences
Breaching a restriction or interfering with an easement can have serious consequences. This could include:
- Costly restoration works
- Delays in planning or sales
- Compensation claims
- Legal injunctions
Due Diligence in Property Transactions
Before buying a property, Kingsfords Residential Property Team will conduct title searches to uncover any easements or restrictions. Buyers should thoroughly review this information and seek clarification if anything is unclear.
How to Check for Easements and Restrictions
- Title Register: Available from HM Land Registry, this document outlines the rights and restrictions affecting a property.
- Title Plan: Shows the boundaries and may indicate the location of rights of way or service routes.
- Deeds: Older properties may have detailed covenants recorded in historical title deeds.
- Local Authority Searches: Document planning and environmental constraints.
Can Easements or Restrictions Be Removed?
Sometimes, yes. Easements can be removed or varied by agreement between landowners. Restrictive covenants may alternatively be discharged or modified by applying to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925, especially if they are obsolete or impeding the reasonable use of land. Land Registry restrictions can be removed by applying to HM Land Registry once the conditions behind them no longer apply.
This process can be complex, and success is not guaranteed. Legal advice is strongly recommended.
Conclusion
Understanding easements and restrictions is crucial when buying, selling, or developing property in England. These legal rights and limitations can impact access, usage, value, and potential future plans for the land. Always review title documents carefully, consult a solicitor, and conduct thorough due diligence before proceeding with any property transaction. Informed decisions today can help avoid costly mistakes tomorrow.
Contact Us
If you have an interest in a property and wish to discuss any of the issues raised Conveyancing Executive Celia Willcock of the Kingsfords Residential Property Team are on hand to support you. Please contact your local Kingsfords office in Ashford, Cranbrook or Hythe. Alternatively, you can send an enquiry and a member of our team will get back to you promptly, by calling us on 01233 665544 or emailing via cw@kingsfords.net. We are happy to discuss matters without obligation.