What is excessive use of an easement?

Excessive use of an easement occurs when someone uses a right of way (or other easement) in a way that goes beyond what was originally intended or permitted. This can lead to disputes with the owner of the land burdened by the easement (the “servient land”).

Broadly, the use of an easement can be considered in three overlapping ways:

1. The nature of the use – e.g. if the type of activity is consistent with the easement’s original purpose
2. The purpose of the use – e.g. if the reason for using the easement has changed
3. The amount of use – e.g. if the volume of traffic over the easement has increased

To determine the excessive use of an easement, these three aspects are frequently looked at in light of the character and identity of the land that benefits from the easement (the “dominant land”).

Excessive use of a right of way or other easement is usually considered in the context of a servient owner whose land is subject to the right of way and who acknowledges that an easement exists, but objects to the way in which the servient land is now being used. For example, land that was once used for farming purposes but is now used in other ways due to development. While the easement will still legally exist in these cases, its use may become excessive if the change in land use leads to different demands on the right of way. 

Example – Jelbert v. Davis

Jelbert v. Davis provides an example of a case in which excessive use of an easement was successfully argued and subsequently limited the way newly acquired rural land could be used. In Jelbert v. Davis, an express right of way was granted “at all times and for all purposes”. However, when the easement was granted, the dominant land was used for agricultural purposes. The right had since changed to a caravan site. 

Although the wording of the right of way allowed for “all purposes” and therefore permitted the use of caravans, the Court held that the right should not be exercised as it would interfere with other legitimate uses of the access by others. This example highlights how the excessive use of an easement can be retrospectively interpreted in terms of context and impact as well as original wording. 

Implications for those buying or selling rural land

If you are considering selling or indeed buying rural land which is reliant on a right of way for access, you must be aware of the implications of excessive use. Should the use of the land in question have changed (e.g., former agricultural land), then careful consideration needs to be given as to whether the change of use will result in an intensification of the access. The servient landowner could object to the new level or type of use and may claim excessive use of an easement, leading to access complications and objections. 

It is therefore vital that you seek appropriate legal advice before disposing of or acquiring rural land. At Kitson Boyce, our expert commercial property solicitors are on hand to assist you through this process and ensure you have suitably considered the implications of excessive use of an easement. For further information and advice, please contact Christian Robertson (Partner & Solicitor) via the form below or by calling 01803 202020.