Solicitor Ed Williams, in our Commercial Property team, explains what a Deed of Release of an Easement in Registered Land is.
A Deed of Release of Easement is a formal legal document used to extinguish the rights granted by an existing legal easement. Typically, it records that the owner of the dominant land agrees to release the benefit of a legal easement it enjoys over the servient land.
Why might you wish to release an easement?
A party may wish to release an easement for a number of reasons, often driven by the impact such easements can have on the use and value of the affected land. Where a property is subject to an easement, such as a right of way, the servient owner may experience ongoing disruption from third parties exercising those rights. Where land is burdened by certain rights of way this may limit development potential, particularly where the easement interferes with building plans or site layout. In these circumstances, a landowner may seek to release the easement, or agree a variation, in order to unlock greater flexibility and enhance the value of the property.
How does a Deed of Release transaction typically work?
Once the release has been agreed in principle, one of the parties’ solicitors will prepare the Deed of Release (and any accompanying documentation), which will then be negotiated and finalised between solicitors. Following completion of the Deed, an application should be made to HM Land Registry to register it. Once the application has been completed, reference to the easement should be removed from the dominant and servient titles.
Other considerations
When negotiating and documenting a release, several additional matters should be considered:
- The parties: Often such agreements are between a single dominant and a single servient owner. However careful consideration will need to be given to whether multiple parties need to be involved. This may be the case where, for example, the dominant land was sold off in smaller plots with the benefit of the easement. Each new owner of the dominant land would need to be a party to fully release the easement.
- Tax implications: The release may give rise to Stamp Duty Land Tax (SDLT), Land Transaction Tax (LTT) or VAT, depending on the circumstances. Specialist advice should be taken before entering into a release.
- Lender consent: Where the dominant land is charged, the lender’s consent will usually be required, and the lender may need to be a party to the release.
- Consideration and commercial terms: Some transactions involve the servient owner paying a capital sum to the dominant owner in return for the release. Any payments or concessions should be clearly documented.
- Associated rights and obligations: Consider whether any ancillary rights need to be varied or preserved as part of the release.
Conclusion
A Deed of Release of an Easement is a valuable tool in commercial property transactions, enabling landowners to remove burdens that may affect their land. As with all property matters, careful drafting and consideration of legal, commercial and tax implications is essential. Professional advice should be obtained to ensure the deed is effective, compliant and aligned with the parties’ objectives.
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.
