Easements – interference and remedies

Are you having problems exercising a legitimate right of way? What can you do to ensure your rights are not being infringed?

Rights of way, rights to drainage and rights to light are all types of easements. This brief guide looks at how to protect them if they are interfered with.

Prevention

Interfering with an existing easement can be neutralised by providing alternative means of exercising the right. Local authorities are able to sometimes override easements that restrict development where planning permission has been granted.

Remedies

• Seeking a declaration from the courts confirming the existence and the extent of the easement provides certainty that the easement can be used in the future.
• Obtaining an injunction, awarded at the discretion of the court, is binding on the parties to the proceedings but not their successors. This will not normally be granted where damages would adequately remedy the claim.
• Damages, which are assessed to compensate the loss actually suffered. If the claimant has suffered no loss only nominal damages apply. Not all losses are recoverable.
• Abatement, allows entry onto another’s land to put an end to the interference. It can be used lawfully for example, to remove an obstruction that is blocking a right of way. The party must not cause unnecessary damage and must give notice, unless it is an emergency. If the nuisance recommences an injunction may be sought.

For more information please contact our agriculture & estates department.