Introduction

It is sometimes necessary for a person, a company, or the general public, to access or use privately owned land for their own benefit through the use of an easement. There are many scenarios where this might happen with one of the most common examples being where rights of way are present to allow an individual to use a private road or drive to access their own property.

There are some less obvious examples too, for example a utility company needing to lay (or keep laid) their equipment underground or overhead through private property for example, sewerage pipes. To install and operate electricity equipment, such as overhead lines, pylons or underground cables, on private property, Electricity Companies are required to get rights to do so from the landowner or occupier.

There are different legal instruments which can be used to grant rights to an individual or company for these purposes, such as an easement.

What is an easement?

An easement is a right granted by one landowner to another party. An easement gives someone who is not the owner of the private property the formal right to use part of the land for a specific purpose. No land itself is sold; only rights over land.

An easement can be granted by the landowner, but unlike a wayleave (see ‘What is a Wayleave?’) the easement will be binding on the successor in title – i.e. the next and any future owner of the title property. This means that the party benefitting from the easement will continue to do so even when the property is eventually sold.

The perpetuity period (length of time the new rights can be enjoyed) for an easement will, usually, be made permanently. The electricity distribution/transmission company will therefore benefit from the rights granted by the easement forever.

A lump-sum payment will be offered in return for permanent rights granted by an easement. There is more information regarding how payment is calculated later in this article.

How is an easement created?

Whilst an easement refers to the actual rights which are being granted from one party to another, the legal document which makes written record of the easement is commonly a Deed of Grant. The Deed of Grant provides a record of what rights the landowner gives to the other party.

For an easement to be created the following four characteristics must be present:

Dominant and Servient Tenement

There are two Tenement’s to an easement – the ‘Servient Tenement’ who grants (serves) the right, and the ‘Dominant Tenement’ who has the right granted to them.

Accommodation of Dominant Tenement

An easement cannot only benefit the private owner of the land, it must accommodate the Dominant Tenement. There must be some direct beneficial impact on the land itself – the easement should not exist only for the personal benefit of the owner.

The Dominant and Servient Owners Must be Different People

An easement cannot be valid if both the Dominant and Servient Tenements are the same person—i.e. you can’t have an easement over your own property. In this context, ownership of the Dominant Tenement means “ownership of the right” rather than ownership of the land.

Subject Matter of the Grant

There must be a clear purpose for the easement to exist, which must form the subject matter of a grant. In addition to the subject matter, clear stipulations about how right can be exercised need to be included.

What does an easement look like, by Deed of Grant?

In the context of electricity utilities, you can expect the particulars for the easement to be covered by a small document which usually consists of 5-10 pages. There are multiple sections within the document; the most significant sections are listed below with a brief explanation of what they cover.

Grant of Rights

This section covers exactly what rights are being granted to the Electricity Company under the easement and includes all the necessary activities the Electricity Company will be given rights to undertake so that they can use, retain, maintain, inspect, examine, test, repair, alter, relay, renew, replace, supplement and remove the Electric Lines.

Company’s Covenants

This section will include all the specific terms the Electricity Company agree to when they exercise the rights the easement gives them. For example how much notice they must give the landowner of their intended entry onto the land, or their obligation to make right any damage they cause whilst on the property.

Grantor’s Covenants

The Grantor (Landowner) must also agree to certain terms, so that the Electricity Company will properly benefit from the rights being granted to them. This may for example include restrictions on development within the immediate vicinity of the equipment (such as significantly altering the ground level underneath an overhead line).

Once all parties are happy and agree to the terms of the Deed of Grant, it needs to be registered against the property title.

How is consideration for an easement calculated?

In exchange for granting an easement it is common practice for compensation (consideration) to be paid to the landowner who grants the right over their property. The compensation amount offered in exchange for a deed of easement is usually based on an Injurious Affection (IA) payment plus any additional Capitalisation (CAP) paid on top – but what does this mean?

Injurious Affection (IA)

This term means the amount by which the presence of statutory infrastructure (such as overhead power lines) causes a decrease in your property’s freehold market value. This amount will take into consideration how close equipment is to your property, what type of equipment there is, and the burden it causes. We typically expect this to fall within a range of £1,500 – £25,000. For more information about Injurious Affection and how it is calculated see the blog post on it here (post coming soon).

Capitalisation (CAP)

For each type of electricity equipment (poles, lines, pylon towers etc.) the Energy Networks Association (the body which governs electricity companies) publish wayleave rates – the amount of money which should be paid annually for the presence of the particular piece of equipment that does not give rise to Injurious Affection. Because an easement is a one-off lump-sum made to permanently authorise the presence of the equipment, annual payments will no longer be made, and so need to be ‘capitalised’ accordingly. This is a method of adding fair compensation for the long-term presence of the Electricity Companies’ assets. Please see the blog post ‘Wayleave Rates and Capitalisation’ (post coming soon) for more information.

What is the difference between an easement and the statutory rights the power company already have?

At this stage of reading, you may be beginning to ask the question above. Currently, the Electricity Act 1989 provides Electricity Companies with many rights even without an agreement in place with you (be it a wayleave or an easement). The statutory rights Electricity Companies already have included their right to access your property to repair and maintain their equipment, or even to fell or lop trees that are in dangerous proximity to the equipment. Granting an easement is a way of regularising these rights and consenting to the Electricity Company keeping their equipment on your property permanently.

The statutory rights vested in the Electricity Company won’t change, and they will still be required to give you notice of intended entry should they need to access your property. As previously covered, the Deed of Grant creating the easement will place some restrictive covenants on yourself as the owner of the property. These restrictions will only be in relation to certain activities within the immediate proximity of the equipment.

Disclaimer: The information in this blog post was accurate at the time of publishing. However, laws, regulations, and best practices may change over time. We do our best to keep our content up to date, but we cannot guarantee that all information remains current or correct. This blog post is for general information only and should not be taken as legal, financial, or professional advice. If you are unsure about anything, please contact us or seek professional guidance before making any decisions.