Facts
This case concerned a 1982 water easement entitling the owner of the benefitting land to water from a borehole on Ford Farm and a right of entry to maintain and repair the same. The right did not mention the supply of electricity to the pump serving the borehole.
This right was enjoyed by the owner until his death in 2012, but was not noted on the register to Ford Farm.
In 2017/18, Ford Farm was sold and in 2019 the defendants cut off the electricity supply to the borehole. The trustees of the benefiting land issued proceedings for a declaration that: (1) they were entitled to a supply of water from the borehole; and (2) an injunction restraining interference with the same. It was argued that the easement operated as an overriding interest.
The ancillary right did not amount to a positive obligation for the farm to both arrange for the supply of electricity and pay for it and to maintain the electricity status. There was instead, an obligation on the defendants not to interfere with the easement. The disconnection by the defendants of the passage of electricity from the farm to the pump at the borehole had interfered the lawful use of the easement.
The court found in favour of the claimants and held that there was a legal easement and there was an ancillary right to the uninterrupted passage of electricity via the farm to the pump.
Legal and Practical Points
1. When conducting due diligence over land it is important to consider whether or not there are sufficient easements in place so that the land can be properly enjoyed. Consider, in particular, the following key factors:
- access and servicing;
- utility supplies;
- rights of light and air;
- specialist rights (if required), such as septic tanks and boreholes.
2. Existing easements should be interrogated for adequacy and, in particular, consider if they are:
- sufficiently clear;
- properly registered on both the benefiting (dominant) and burdened (servient) land;
- being complied with by the parties;
- subject to any constraints or limitations.
3. Easements which are inadequate (or missing) constitute defects in title and should be the subject of either:
- title insurance; or
- correction.
Remember these are mutually exclusive and once you have approached a party regarding correction it is not normally possible to secure indemnity insurance.
4. Prescriptive easements may provide a fix, but remember that the bar is high – you need to prove 20 years uninterrupted use. You will likely want:
- insurance in place; and
- suitable statutory declarations from previous owners to establish this.
Remember applying to register prescriptive easements can be litigious and consequently costly.
Conclusion
It is important to establish the interrelationship (and risk) between any proposed development or use of a property with easements and the terms of any existing easements – the easements may not be adequate or suitable for a new development and/or they may be open to attack based on arguments around intensification of user, and new easements may only come at a price. This may therefore provide a weapon to a neighbouring owner who wants to prevent or ransom a development. Please do not hesitate to contact the team to discuss any concerns you may have in relation to existing easements.
If you have any enquiries, please get in touch with our Real Estate team.
Authors: Julie Simms, Lee Pickett, Tom Hubbard and Mathew Abiagom
