Solicitor Ed Williams, in our Commercial Property team, explains what a Deed of Easement for a Right of Way is.
A Deed of Easement for a Right of Way is a legal document that grants one party the formal right to use a part of another party’s land. One of the most frequent uses of such a deed is to grant a right of way, which allows the grantee (the person receiving the benefit of the right) to pass over the grantor’s (the person granting the right) property. Using a Deed of Easement is often necessary where a property does not have direct access to a public road and must rely on crossing neighbouring land for entry and exit.
Why Use a Deed of Easement?
A right of way granted by deed is a legal easement. This means it is not only binding on the original parties but also on future owners of both the benefiting and burdened land (provided certain legal requirements are met). There are several key reasons why using a deed is beneficial:
- Legal certainty: A written deed clearly sets out the route of the right of way, any limitations (such as pedestrian use only), and who is responsible for maintenance.
- Permanence: Once properly granted and registered, the right of way becomes an enduring legal interest and will remain in force even when ownership of the land changes.
- Avoiding disputes: A formal deed helps prevent misunderstandings between the parties and/or subsequent landowners about the scope or existence of the right.
What Should Be Included in a Deed of Easement?
A well-drafted Deed of Easement should include:
- A detailed plan showing the land affected and the exact route of the right of way.
- The purpose of the easement (e.g. access for vehicles or pedestrians).
- Any restrictions on how the right can be used (e.g. no commercial vehicles).
- Provisions for maintenance and repair of the route.
The deed must also be executed as a deed (signed, witnessed, and dated) and should be registered at HM Land Registry if the land is registered or as a Land Charge if the land is unregistered.
Alternatives
While a deed is likely the most robust way to create a right of way, in some cases, rights can arise through long-term use known as prescriptive easements. However, proving such rights can be complex and expensive. A deed removes this uncertainty and avoids relying on historical evidence of use.
Depending on the circumstances, other legal arrangements might be more suitable:
- Lease: If exclusive possession of land is being granted for a fixed term, a lease may be more appropriate. A lease creates a legal interest in land and offers greater security to the occupier.
- Access Licence: can be used to grant temporary access rights to third parties without creating a legal interest in the land. Due to this fact, they are well suited to short-term arrangements
Each option carries different legal implications. What is appropriate will depend on your specific circumstances you have.
A Deed of Easement for a right of way is a valuable legal tool that provides long-term access rights in a clear and enforceable manner. Whether you're granting or receiving access, professional legal advice is strongly recommended to ensure the deed is properly drafted, compliant with legal requirements, and fit for your specific circumstances.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
