Easements and rights of way appear in the legal pack of almost every UK property transaction. For most acquisitions they are routine — a neighbour’s right to cross a shared driveway, a utility company’s right to run pipes beneath the garden, or a long-standing footpath crossing a field edge. For some acquisitions, however, they are transaction-defining: an unregistered right of way that restricts development, an undisclosed access burden that affects lettability, or an easement that renders planning-consented works unlawful.
Understanding how easements work — and knowing what to look for in the legal pack before exchange — is one of the most practical due diligence skills a property investor can develop. This guide covers the essentials.
What Are Easements and How Are They Created?
An easement is a legal right that one property — the dominant tenement — holds over another property — the servient tenement. Unlike a restrictive covenant, which is a promise about what a landowner will or will not do, an easement is a positive right to use the servient land in a particular way.
Common examples include rights of way (pedestrian or vehicular access across another’s land), rights of light (entitlement to receive daylight through existing windows), rights of support (structural support from an adjoining building or land), rights to run services (drains, pipes, cables, wires beneath or through another’s land), and rights of water (to take water from a stream or watercourse).
Easements can be created expressly by deed on a transfer or conveyance splitting land; impliedly, arising automatically where land is sold and necessity demands it; by prescription, acquired through 20 years of long and uninterrupted use under the doctrine of lost modern grant or the Prescription Act 1832; or by statute, where certain utility and infrastructure rights arise by legislation rather than agreement.
The critical point for investors is that not all easements are registered at the Land Registry. Prescriptive easements and some implied easements will not appear on the title register, yet they are fully enforceable. This is why a thorough review of the complete legal pack — and not merely the title register — is essential before exchange.
Rights of Way: The Most Common Easement Issue in Practice
A right of way is a specific type of easement conferring a right of passage across land. They divide broadly into public rights of way — footpaths, bridleways and byways open to the general public, recorded on the definitive map — and private rights of way, which benefit specific land or a named individual and do not extend to the public at large.
For investors the distinction matters in several practical ways. A public footpath crossing an investment site cannot easily be removed or diverted without a formal statutory process, which is time-consuming and by no means guaranteed. A private right of way can in principle be negotiated away, varied by deed, or insured over, depending on the circumstances and the co-operation of the parties with the benefit.
When reviewing a legal pack, the key questions around rights of way are: does the property benefit from an expressly granted right of way to the public highway, or does it rely on a route across third-party land that is not formally documented? Are there any rights of way across the property that restrict use, parking, access or future development? Is the right of way adequate for the investor’s intended use — wide enough for vehicles, suitable for HMO occupant volumes, or consistent with commercial access requirements? Are there maintenance contributions or repair obligations attached to shared access drives or privately maintained roads?
Easements That Benefit the Property
Easements that benefit a property are generally positive — they add value, functionality and flexibility. The most important to confirm before exchange are as follows.
Access rights. Where a property relies on access across third-party land — a shared driveway, rear access lane or private road not adopted by the highway authority — the legal pack must confirm this right is expressly granted, adequately wide for the intended use, and not time-limited or personal to a previous owner. An informal access arrangement without a documented easement is a matter to clarify before exchange. Lenders will typically require a formal right, and some will require title insurance if the position is not wholly clean.
Drainage and services. Most urban properties drain across neighbouring land or through shared sewers. A confirmed drainage easement is standard and presents no issue. Where drainage routes are unclear or pass through unregistered land, the position is worth confirming with the drainage authority or by way of a drainage search. Absence of a formal record is not necessarily adverse — many drainage arrangements function perfectly well informally — but it is a point to protect contractually if resolution is not possible before exchange.
Rights of light. Where a property benefits from established rights of light, this can be commercially significant, particularly if neighbouring development is proposed that might reduce daylight to existing windows. Rights of light attach to specific apertures and are acquired through long use. They do not need to be registered at the Land Registry to be enforceable.
Easements That Burden the Property
Easements that burden the property are more directly relevant to the bid calculation. The key categories to assess are as follows.
Shared access burdens. Where the legal pack discloses that neighbouring properties have the right to cross your land — whether by express grant or by long prescription — this limits the investor’s ability to gate, fence or otherwise restrict access over that route. For development sites, a shared access obligation can materially constrain layout options and requires early input from the project architect or planner.
Service apparatus runs. Statutory undertakers — water, gas, electricity and telecoms providers — frequently have rights to maintain apparatus beneath or through private land. These rights restrict the ability to build over or in proximity to those runs without consent. On tighter development plots the location of existing apparatus can reduce the buildable footprint, which is a matter to price into the deal and to assess against the scheme’s viability before commitment.
Rights of light burdening the property. Where a neighbouring property has established rights of light over your site, any proposed extension, additional storey or new building must not materially interfere with those rights. This is one of the less visible but more impactful easements for refurbishment and development investors. It is not recorded on the title register, and a rights of light survey may be warranted before committing to a scheme on an urban development site.
What to Look for in the Legal Pack
When reviewing the legal pack ahead of a bid, the following areas require focused attention. The title register: Section A (the property register) typically records the benefit of easements; Section C (the charges register) records burdens. Both sections should be read in full, with entries cross-referenced against filed documents and, where appropriate, the title plan.
The filed plan and extent of title: the title plan shows the registered boundary extent but does not illustrate easements graphically. Where access routes or service corridors are referred to in deeds, the physical route should be checked against the property as it is being marketed.
Pre-contract enquiries (TA6 or LPE1 for leasehold): the seller is required to disclose disputes, complaints and known issues relating to rights of way, boundaries and access. Qualified answers or “not known” responses on material points are a prompt for specific follow-up enquiries of the seller’s solicitors.
Historic title deeds: for registered land, significant easements may have been granted in pre-registration conveyances that are referred to in the register but not reproduced in the filed copy. Where material easements may have arisen in earlier documents, copies should be requested from the seller.
Planning documents: on development sites, planning conditions or section 106 obligations may require or restrict specific access arrangements that interact with existing easement rights.
Investor Implications: Pricing, Finance and Exit
Easements and rights of way affect an investment across the lifecycle of ownership in several practical ways that should be factored into the bid.
Lettability. Where a right of way crosses the garden of a residential buy-to-let, this is generally manageable — it is a point to disclose to tenants and reflect in the tenancy agreement rather than a transaction-breaker. Where a right of way materially compromises privacy, parking or external amenity space, the impact on achievable rent and occupancy should be priced accordingly.
Lender requirements. Most mortgage lenders will require that the property has an unambiguous right of access to the public highway, whether by express grant or confirmed legal title. Where the position is informal or undocumented, title insurance is typically the practical route to satisfying lender requirements without needing a deed of easement to be negotiated and executed before exchange.
Development potential. On an acquisition-for-development, easements can be the difference between a viable and a non-viable scheme. Rights of light, third-party service apparatus, shared access obligations and ransom strip scenarios all interact directly with the development programme. Early specialist input is warranted wherever the scheme relies on access, air space or a footprint that may be affected by a neighbouring easement claim.
Resale and refinance. An easement burden that is properly disclosed and priced at acquisition is generally not a barrier to future sale or refinance. An undisclosed easement discovered on resale — particularly one that restricts use or development — can cause material delay and give rise to a claim. Confirming the full easement picture before exchange is straightforward due diligence that protects the investor throughout the hold period and at exit.
When Title Insurance Is the Right Approach
Not every easement uncertainty needs to be resolved by deed before exchange. Title insurance is widely available in the UK market for a range of common scenarios: prescriptive rights of way claimed by neighbours but not formally documented by deed, missing or incomplete documentation for rights of access across third-party land, rights of light where a specialist survey has not been commissioned, informally established drainage routes not confirmed by a formal easement, and utility apparatus runs where no formal wayleave or easement has been documented.
Title insurance is typically a one-off premium, available at relatively modest cost for standard residential acquisitions, and is widely accepted by lenders. It transfers the risk of an adverse claim to the insurer rather than requiring the parties to resolve the underlying uncertainty before exchange — keeping transactions moving and preserving commercial momentum.
That said, title insurance is not a substitute for understanding what you are acquiring. The policy schedule will contain exclusions, conditions and limitations that need to be read carefully. Where the easement issue is material — a shared access serving multiple properties, a third party actively asserting a right, or a position that could significantly restrict the intended use — the matter warrants considered review before defaulting to an insurance approach.