When a parcel of land is sold, the seller will often retain rights relating to the passage of services over, under and through the land being transferred. These are known as easements, and can include things like rights of drainage or utilities. Equally, the buyer will usually be granted the same or similar rights over the neighbouring land remaining with the seller.

In theory, this all sounds fairly straight forward. If, however, an express repairing covenant is not included when the easement is created, a question that often arises is whether there is an ancillary right or an obligation on either the dominant or servient owner to repair the subject matter of the easement, such as a drainage ditch for surface water. This is especially the case where the medium for the utility is not being used by the land through which it runs.  

For example, the seller’s land may benefit from a connection to mains drainage directly from the highway drains for surface water, where the seller has installed a ditch to the drainage pipe which then runs through their land to serve the plot that they have sold. The potential problem here arises in that a seller who does not need to connect to that ditch and, as, such, it is entirely for the benefit of the buyer, is unlikely to be willing to accept responsibility for the ongoing repair and maintenance of that ditch, or at the very least for the cost of the same. 

In some cases the rights and obligations of each party may be clearly set out, for example, that the user of the ditch is to repair this at their own cost and, with that, they would have the right to access the seller’s land to do so. Alternatively, if the seller wishes to maintain control over the ditch and who accesses their land, the parties could agree to an obligation on the buyer to pay towards the costs of this. If the drainage ditch only serves the buyer’s land, then the parties may even agree to the buyer being responsible for the full cost. 

If, however, the repairing rights and obligations of the parties are not clearly defined from the outset, this can potentially lead to ongoing disputes later down the line. Moreover, where the buyer of the land is planning to develop their plot, this can cause significant and costly delays. This could be, for example, where a dispute arises over whom is responsible for unblocking a ditch, and whether or not the buyer is entitled to access the adjacent land to carry out works. 

As a developer, in addition to ensuring that easements required for utilities and services are not overlooked, it is vital that the repairing rights and obligations relating to the subject matter of any easement are properly defined. For this, expert legal advice must always be sought, ensuring that any repairing provisions are adequately and accurately drafted so as to protect your rights and safeguard your investment.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.