Easements - Party Wall Act Section 9

Easements: Section 9 of the Party Wall etc. Act 1996

“Section 9 protects existing easements, including easements of light.”

[The Earl of Lytton]

Section 9 provides that a building owner intending to carry out any works in pursuance of this Act is prohibited from interfering with any adjoining owners existing rights.

What is an ‘Easement’?

In England and Wales, an easement gives a landowner the right to use another’s land for the benefit of his own. It should be noted that the land need not be an adjoining land.

Whilst an easement creates an essential right over another’s land, any such right that is claimed must satisfy the common law test as set out in the case of Re Ellenborough Park [1956] Ch 131. In this case, the essential characteristics pertaining to an easement were laid out in a four-tier test;

  • There must be a dominant and servient tenement;
  • The easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
  • The dominant and servient owners must be different persons;
  • The right claimed must be capable of forming the subject-matter of a grant.

The first tier states that there must be two distinct plots of land that are affected, as a right of way that is granted to an individual is granted in their capacity as a landowner. An individual who does not own any of the affected lands is merely a licensee.

The second tier provides that any essential use of another’s land must provide both enjoyment and a benefit. In other words, there has to be some form of connection between the plots of land. For example, a right of way on a dirt road to access the user’s property, or the laying of pipes or service cables for public utilities and services. If a user is unable to show a connection of this proximity, an easement will not have been formed.

The third tier provides that any landowner wishing to create an easement must be distinctly separate from the owner of the land s/he is to derive a benefit from. However, this does not prevent quasi-easements from being created, which can in turn be registered as full easements.

The fourth tier is the most difficult to establish. In English land law, an express easement must be created by way of a deed. It is therefore imperative that any right that is to be created is both certain and definite in its purpose and that the courts will recognise such a right as an easement.

There are several ways to create an easement in English law, these are;

  • Express Grant: It is a legal easement and must, under the provisions of the Law of Property Act 1925, be created by way of a deed. Thus, it will therefore bind all successors. This is legal interest must be registered at the Land Registry against both the dominant and servient land.
  • Implied Easement: It's an implied easement also provides a legal interest however there is no legal requirement for it to be registered. An implied easement is created when a vendor has two plots of land, sells one and retains the other. An easement may arise on the retained plot or the sold plot.
  • Implied Grant: It's an easement implied by grant is one that usually exists when it is necessary for the enjoyment of the land.
  • Implied Reservation: these types of easements are created they must be necessary either for the use of land in general or for the use which the parties together intend the land to be put.
  • Prescription: a prescriptive easement is one where a right has long been physically enjoyed by a land owner. The use of the land must be for more than twenty years and that its usage was not by force, stealth or permission of the servient land owner. Such easements can be registered.

Here at Icon Surveyors, we are happy to discuss any party wall matters of concern you may have and assist where possible, get in touch with us now for your free consultation.

Note*: This blog is not an authoritative interpretation of the law; it is intended as a general guide.

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