Easements—actionable interference

The following Property practice note provides comprehensive and up to date legal information covering:

  • Easements—actionable interference
  • Not every interference is actionable
  • Rights of way
  • Effect of gates
  • Alteration of rights of way
  • Deviation of rights of way
  • Statutory powers
  • Rights of light
  • Rights of support
  • Estoppel by acquiescence
  • More...

Easements—actionable interference

Wrongful interference with an easement is a private nuisance. The existence of the easement must be established for a claim to succeed.

Not every interference is actionable

Not every interference with an easement amounts to an actionable wrong. There is no cause of action unless there is substantial interference with the enjoyment of the easement as reasonably required by the person with the benefit of the easement. The question of whether the manner of exercise of the easement is as ‘reasonably required’ is measured by reference to convenience, rather than necessity, or even reasonable necessity. So if an obstruction interferes with a particular mode of exercise of the right which is neither unreasonable, nor perverse of the beneficiary to insist on, the obstruction will be an actionable interference. That is the case even if there remain other reasonable ways of exercising the right which many, or even most, people would prefer.

So essentially, the test of an actionable interference is not whether what the person with the benefit of the right is left with is reasonable; it is whether his insistence on being able to continue to use the whole of what he contracted for is reasonable. The question is whether the right can be practically and substantially exercised as conveniently as before the obstruction occurred. Even occasional obstruction may qualify.

The result depends on the nature

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