When embarking on a new build development, one of the critical legal aspects developers need to address is the management of easements and rights of way. These legal terms often go unnoticed but can significantly impact the feasibility, cost, and long-term success of a project. 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 for developers

Identifying existing easements

Before breaking ground, a developer must identify any existing easements or rights of way on the land. Ignoring this step can lead to significant legal disputes and financial losses.

Legal documentation

Easements should be clearly documented, typically through documents such as a deed of easement, transfer deed or lease to outline specific rights granted. However, not all easements are clear. It is important when undertaking a new development to fully understand the extent and scope of any easements which affect the land intended to be developed. Failing to do so can lead to future disputes and disruptions to your plans!

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.

Common challenges developers face

Relocating or extinguishing easements

Developers may face challenges when an existing easement is incompatible with their plans. If an easement exists on the site, legally this cannot be obstructed. For example, if a new housing development is planned but an existing easement crosses through the middle of the land, the developer may want to relocate it. Issues such as this could possibly be rectified through a Deed of Variation or Deed of Release but this can be a complex process. However, this requires the consent of the benefiting party and they may not agree, or they may demand significant compensation. So it is essential that developers seek legal advice as early as possible.

Disputes with neighbours

Disputes with neighbouring landowners can arise over the use of easements. For example, a neighbouring landowner may claim that the development interferes with their easement rights. Developers need to be proactive in preventing disputes with clear communication and understand the extent of the easement to prevent any existing easement being obstructed.

How to overcome easement challenges

Conduct thorough due diligence

Before purchasing land, developers should conduct a comprehensive review, carry out relevant searches and obtain legal assistance. This reduces the risk of unexpected easement-related obstacles.

Full assessment

At the start of a project and before works begin it is vital that any existing easements and rights of way are fully considered against any planned works to ensure a functioning new development. This is important to make sure that no existing easement is infringed leading to any potential legal action in the future.

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