Easements—obligations to repair and maintain
Easements—obligations to repair and maintain

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

  • Easements—obligations to repair and maintain
  • Is there an obligation to repair?
  • What are the common law presumptions?
  • What rights to repair does the dominant owner have?
  • Constructing the easement
  • Repairing the easement
  • Entering the servient land
  • Nuisance
  • Access to Neighbouring Land Act
  • What must the servient owner do?
  • More...

Easements—obligations to repair and maintain

This Practice Note looks at where the responsibility lies for repairing and maintaining land which is subject to easements and at who is responsible for the cost of its upkeep particularly where there is no express agreement allocating responsibility for carrying out repairs and/or paying for the costs of repair and maintenance.

Is there an obligation to repair?

An easement is a right to do something on another’s land or to prevent something being done; it is not an obligation to do something.

In the Scottish case of Moncrieff v Jamieson, Lord Scott summed it up: ‘the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee, could not be an easement’.

In practice, however, easements frequently require some action to be taken; for example, a road may need to be repaired or a drain may need to be cleared.

Where the easement has been created by express grant, the original grantor and grantee may have entered into an agreement about the ongoing maintenance of the easement and the payment of any associated costs—although this approach is not without its difficulties; see What if there is an express agreement to repair? below.

If the easement has been created by implied grant or been acquired by

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