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Flexing your easements

With building plots in ever short supply and developers increasingly dependent on sites owned by third parties for services and access, the ability to affect an alteration of rights over neighbouring land could be vital, says commercial property specialist Alex Walsh (pictured).

Alex, a partner at national law firm Clarke Willmott LLP, says failure to tackle ‘easement’ issues – the right of one landowner to make use of another nearby piece of land for the benefit of his own land – could prevent or hinder a proposed development.

He says not affecting the alteration could affect access over the land, or access to lay and use services such as gas, water, and electricity.

“In the first instance, the party proposing to develop should check the Deed of Grant or Transfer which created the rights and discover their extent and who might exercise them,” said Alex.

“It is important to consider all potential beneficiaries as there may have been a sale of part of the benefiting land creating more parties using the rights.

“Where such rights exist, but are not exercised, it may be possible to negotiate the release of the right with the owner of the benefiting land. This will usually require the payment of a sum of money in exchange for the release.”

Alex says it is also prudent to consider incorporating a so-called lift and shift provision within the agreement that would require the land burdened by the rights to require the ‘benefiting landowner’ to alter the right where the ‘burdened landowner’ requires it.

“This could be varying the right of way for example with a temporary access route while the new access is being constructed, or the payment of compensation to the ‘benefiting landowner’ for any temporary loss of amenities.

“In the absence of a lift and shift provision, a decision needs to be made whether the site is adequate for the proposed development with the existing rights in place. If not, this may be a reason to withdraw from a purchase.”

If negotiations are successful or a lift and shift provision exists and is exercised, the right must be amended formally and noted at HM Land Registry either by a surrender of the original deed and regrant of the right, or by a deed of variation which would vary the existing deed.

Alex Walsh is a partner in Clarke Willmott’s commercial property team with experience including acquisitions and disposals, leases and licences, estate management, corporate support, and development.

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton, and Taunton.

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