Developing land or converting existing buildings for residential or commercial use create obvious commercial opportunities for rural landowners and farmers looking to diversify. In more recent years, this has especially been the case because of the greater flexibility offered by permitted development rights in England.

However, it is critical to get the basics right to avoid expensive surprises. Easements, in particular, require some careful analysis and consideration.

An easement is a right benefiting a piece of land (known as the dominant tenement) that allows its owner to use the land belonging to someone else (the servient tenement) in a certain manner. Common forms of easements include rights of way, giving access across neighbouring land and a right to run services such as water pipes or cables through a servient tenement.

The difficulties associated with easements and development sites often stem from the varying ways in which easements can be created, other than by deed.

A review of HM Land Registry registers and deeds can help developers establish early on whether there are express easements as well as covenants or mines and minerals rights that may restrict or limit their ability to develop land.

However, it is often the easements created by implied grant or prescription that give rise to unexpected issues, notably because no one realised they amounted to permanent enforceable rights. This is particularly relevant in rural settings where easements may have arisen informally rather than by deed. The details of their origins may have disappeared with previous generations of landowners.

Easements can arise in a few ways:

• By prescription (a prescriptive right), where a right has been enjoyed for the benefit of other land continuously, usually for a period of 20 years or more, without permission, secrecy or force;

• By necessity, where land is inadvertently landlocked on a sale that did not include express easements or access to a public highway; • To give effect to the common intention of the parties where the easement is needed for an intended use of land;

• By a presumed grant of an easement pursuant to Section 62 of the Law of Property Act 1925. Unless expressly excluded, Section 62 will automatically grant an easement where an apparent right (known as a quasi-easement) was enjoyed immediately before a transfer of part. For example, a full easement can arise pursuant to Section 62 where a farmer has used a shortcut to walk between what is to become the development site and their farmyard, on the sale of the development site. In essence, the apparent right/quasi-easement is upgraded to a legal right; and

 • Easements arising under the rule in Wheeldon v Burrows (1879) are to similar effect.

To say the least, to find the new owner of a luxury barn conversion crossing a working farmyard to take a shortcut to a public footpath can give rise to no end of issues.

Potential developers should be aware that rural development sites can run into serious problems when a neighbour asserts a prescriptive right across a development site, or when implied drainage rights, which benefited the development site for years, as rural open land, are unable to take the intensification of a new development.

If developers on rural land want to reduce the likelihood of unforeseen costs, upset neighbours and serious construction delays, it is important to root out any potential issues early on in a project lifecycle and set out a strategy.

A neighbour who has unsuccessfully objected to a planning application may soon turn their attention to other means to thwart an unwanted development, and implied rights may well offer up the opportunity to do just that.

Originally published in Property Week.