Easements: Rights of Way, Responsibilities and Property Disputes

Easements, commonly known as rights of way, are a frequent source of confusion and unfortunately, property disputes. Whether you are buying or selling a property, or already facing a disagreement with a neighbouring landowner, understanding easements and the legal obligations attached to them is essential.

This guide explains what easements are, how they are created, and who is responsible for repair and maintenance, helping you avoid common myths and unnecessary disputes.

What Is an Easement?

An easement is a legal right enjoyed by one landowner over another person’s land. Unlike ownership, it is a non-possessory right, meaning it allows use of land without owning it.

Common examples of easements include:

• Rights of way to cross neighbouring land
• Utility rights for pipes, drains, cables or wires
• Rights to light preventing obstruction of natural light
• Rights of access to carry out repairs to shared walls or boundaries

In property law, two key terms are used:

• Dominant tenement – the land that benefits from the easement
• Servient tenement – the land that is burdened by the easement

How Are Easements Created?

Easements generally arise in one of three ways:

1. Express Grant

An easement may be formally created by agreement, usually set out in a Deed. This is the clearest and most straightforward method.

2. Prescriptive Easement

A prescriptive easement is acquired through long and uninterrupted use, typically for at least 20 years, without permission from the landowner. The use must be open, continuous, and without force.

3. Easement by Necessity

An easement by necessity is implied by law where land would otherwise be landlocked and unusable. These rights exist only for as long as the necessity remains — for example, they may end if an alternative access route is later created.

Rights and Obligations: Who Is Responsible for Maintenance?

A common question in property disputes is who must repair or maintain a right-of-way.

In some cases, the title deeds will include covenants clearly setting out responsibility for maintenance and repair. Where these exist, they will usually be decisive.

However, many easements, particularly prescriptive easements or those arising by necessity, contain no express maintenance obligations.

In the absence of specific wording:

• The servient owner is not obliged to maintain or repair the right of way
• The dominant owner is also not obliged to repair it

That said, the dominant owner may carry out repairs at their own expense under what is known as an ancillary right.

What Happens If the Access Falls Into Disrepair?

While neither party may be strictly obligated to repair, legal issues can still arise.

• A dominant owner may need to carry out repairs to avoid committing trespass or nuisance, which are civil wrongs (torts).
• A servient owner may become liable if their failure to maintain the land causes a substantial interference with the right of way.

The threshold for interference is high, but if access becomes blocked, unsafe, or unusable, the dominant owner may have grounds to bring a claim.

Easements and Property Disputes

Disputes over easements often arise due to:

• Blocked or restricted access
• Disagreements over maintenance costs
• Changes to land use
• Development affecting rights of way or light

Understanding your legal position early can help prevent disputes from escalating into litigation.

How Our Dispute Resolution Team Can Help

Easements and rights of way can be legally complex and emotionally charged. If you are experiencing a dispute relating to:

• Use of a right of way
• Obstruction or interference
• Repair and maintenance obligations

Our Dispute Resolution team has the expertise to advise you clearly and pragmatically.

Contact us today to discuss your situation and explore your options.