Wayleave or easement

Here is a question that I bet you have not been asked recently down the pub: “What’s the difference between a wayleave and an easement?” Perhaps not everybody’s idea of interesting conversation, but with the current proliferation of development and infrastructure upgrades, it is worth knowing your wayleaves from your easements.

A wayleave is an agreement between a land owner or occupier and a third party, permitting that third party to do something for example to access the land to carry out works in return for compensation. Typically, they could be used to allow utility companies to install cables or pipework under, on or over the land, with the right of access for maintenance and repair. The compensatory payment can take the form of a lump sum but is usually an annual payment.

Wayleaves are not permanent and can be time limited, although some wayleaves are protected by statutory code powers. Compensatory payments can be split between the owner and the occupier. If it is the landowner that requires the service that is being installed, it may be better dealt with via a customer service contract than a wayleave.

An easement is a right that someone holds over land owned by somebody else. Easements are attached to the land and are normally created by deed. They may also be registered on the title as held by the Land Registry. They are often considered to last in perpetuity but can be extinguished and some may also be time limited. Examples of easements include the right of access and the right for services to pass beneath neighbouring property.

For an easement to be created, an area of land must benefit from the easement on land nearby which is in different ownership. The land will normally be adjacent, but could be slightly removed. A remote house or steading may enjoy the right of access across several parcels of land in different ownership before the public highway is reached.

The compensatory payment or premium if you like for an easement is usually made as a lump sum and could be considerable. However, it also could have a negative impact on the value of the land subject to the easement as it will affect and restrict the land going forward.

Some infrastructure that is newly installed (such as telecoms equipment may have statutory protection and even if you wanted to it may be impossible to remove the media and achieve vacant possession of the land despite what the provisions of the agreement prescribe.  This can be very problematic for development proposals and could have a significant detrimental effect on the land.  Wayleaves and easements do have one thing in common: if badly drafted or badly thought through, they can have adverse consequences for the landowners involved.

Therefore, it is essential to take professional advice early in the process of negotiating a wayleave or an easement.

If you would like any further information or to discuss any rural related matter, please contact Tom Wills, head of the agriculture & estates department at Sintons.

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