When starting a new build development a key aspect that developers should fully consider is the required easements and rights of way for a functioning estate. How critical these legal aspects are in a development is often forgotten. When fully considered at the start of the development process, correctly created easements and rights of way can prevent potential future costly legal disputes and unsuccessful developments. Here's an overview of the key legal considerations and challenges developers may face when dealing with easements and rights of way.

What are easements and rights of way?

• Easements refer to a legal right for one party to use another party’s land for a specific purpose. This might include access for utilities, drainage, or even footpaths.
• Rights of way are a specific type of easement that provides the right to pass through another’s property, such as using a private road or pathway.

Both easements and rights of way are interests in land, meaning they allow a certain use of land without ownership. However, they impose legal obligations and restrictions on both the landowner and the party benefiting from the easement or right of way.

Key Legal Considerations

Negotiating new easements

In most cases, new build developments will require the creation of new easements. For instance, the project might need access to utilities like water, gas, or electricity, which can involve negotiating easements with neighbouring landowners or utility companies. But more importantly granting and reserving rights over the development is essential for individual plot purchasers such as over roads or adjoining plots.

Key points for consideration during these negotiations include:

• The purpose and scope of the easement.
• Access rights during and after construction. 
• Compensation to the landowner granting the easement.

Title

When creating a right of way or easement the route of these must be within the land owned by the developer. Full consideration must be given to whether any right of way falls outside or needs to fall outside the title of the developer. In this situation the landowner of the land the easement encroaches will need to be party to the creation of the easement.

Legal documentation

Easements should be clearly documented, typically through a deed of easement, transfer deed or lease. This document must outline the specific rights granted, the parties involved, and any restrictions or obligations. Failing to properly document easements can lead to future disputes, especially when there is a change ownership.

For developers, it is essential to work with legal professionals to ensure that all easements are enforceable, properly registered, and clearly defined to avoid future challenges.

Potential challenges when creating new easements

When building a new development and creating a new community a developer will need to carefully consider what new easements and rights of way will be required. It is essential to ensure that a developer has the ability to grant the required rights but also to retain the necessary rights to continue development after a property is sold. This can include but is not limited to:

Shared pathways . Multiple properties may be accessed by one pathway which runs over land outside of their ownership and so rights need to be granted for residents to be able use these to access their property.

Shared driveways. If a property is accessed by a shared driveway rights of way need to be granted to pass over the driveway to access the property.

Utilities . Easements need to be granted for use of pipes, drains, cables etc and also rights need to be reserved for access to such for repair and maintenance.

Roads and footpaths . Until such time as the roads and footpaths on the development are adopted by the local authority it is crucial that rights of way are granted and reserved over and along the roads and footpaths for access.

As crucial as it is to create new easements and rights of way it is as important to make sure these are also protected, where relevant. Residential development specialists can discuss further with you how to ensure that these essential rights are not infringed, restricted or interfered with.

Overcoming Easement Challenges

Conduct thorough due diligence

Before commencing development, developers should conduct a comprehensive review, study the estate layout and the access required. This reduces the risk of unexpected easement-related issues.

Fully assessing easement requirements

At the start of a project it is critical that the easements and rights of way required for a successful and functioning new development are fully considered. These range from utilities and service media to roads and footpaths.

Engage legal professionals early

Easements and rights of way are complex legal issues that can significantly impact and delay new build developments. Developers need to be proactive in identifying, negotiating, and managing these legal rights to avoid disputes and ensure their projects remain on track. With thorough due diligence and careful legal planning developers can overcome the challenges posed by easements and rights of way and successfully bring their projects to fruition.

Involving experienced residential development specialists at the early stages of a development can help navigate the legal complexities of easements and rights of way . Call us on 0800 1380 458 or email help@switalskis.com