Easements and perpetuities
Easements and perpetuities

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

  • Easements and perpetuities
  • Drafting—2009 Act
  • Due diligence—future easements
  • The rule
  • Wait and see
  • Ancillary easements
  • Leasehold issues
  • Perpetuity versus duration
  • Future acquired land

Drafting—2009 Act

The Perpetuities and Accumulations Act 2009 effectively disapplies the rule against perpetuities from future easements granted on or after 6 April 2010, so a draftsman now need not be concerned to specify a perpetuity period. Any restrictions on the exercise of the easement specified in the document itself, will, of course, still apply.

Due diligence—future easements

The rule still applies to easements granted before 6 April 2010. Perpetuities are not an issue if the subject matter of the easement already exists at the date of grant. For example, the rule has no application to an easement to use existing service media. However, where an easement is granted to use service media which may be constructed in the future, the subject matter of the right ie the service media does not exist at the time of the grant and is, therefore, subject to the rule.

The rule

The courts developed the rule to prevent property being tied up indefinitely. There are three elements to the rule, one being the rule against remoteness of vesting, under which a future interest in property must be certain of vesting within the applicable perpetuity period. The period runs from the date of grant of the easement. According to the circumstances, the perpetuity period may be either:

  1. the common law period