A person bought a house to learn, a few years later, that the neighbor is in fact the owner of the land used as the driveway into the house and that the neighbor actually refuses to allow passage through the adjacent land, which renders the house parking place unusable. Can such person force the neighbor to continue to allow passage to the parking place of the house?
An easement is a right given to a person, entity, the public or a specific land ("dominant estate") to use another's land ("servient estate"). The easement holder is entitled to make a specifically defined use of the servient estate but not to actually possess the servient estate. A classic case is where a path that leads to a land partially passes through a land of another - an easement is required to pass to the house but is limited to the right-of-way.
An easement can be either to a specific person (and is then not alienable without permission of the owner of the land subject to the easement) or to another land (the "dominant estate"), in which case any person who possesses the dominant estate will be entitled to exercise the easement.
When an easement is created by an agreement with the servient land owner it requires registration of the agreement at the Land Registry. The agreement may be with or without consideration and for a specified period or for an unlimited time.
An easement can be created even without an agreement but by prescription, i.e. use of the servient estate for many years. To create an easement by prescription four cumulative conditions must be met: (a) use of servient estate continuously for at least 30 years; (B) use was open and notorious, adverse and hostile – i.e. the use was against the land owner's right and the land owner could have noticed it; (C) use of the land is suitable for an easement, i.e. it is not a holding of the land; and (d) the servient estate owner did not object in writing to the use of the land during the period of prescription. If all four conditions listed above, the user may move the Court to order the easement to be registered at the Land Registry.
It is noted that there are other types of easements except the right to a specific use, such as an obligation to take a specific action or refrain from a specific action in the servient land, but these types of easements are less common.
Unless otherwise provided, an easement is for an indefinite period, but the Court may, on application by an interested party or the Attorney General, cancel an easement or change its terms, if it deems it necessary to do so due to non-exercising of the easement or because of a change in circumstances in the easement holder or the servient estate. The Court may award damages to anyone who suffered damage by cancellation or change of the easement.
In light of the above, it is suggested to landowners to avoid a situation in which they allow third parties to use their land for a long period of time without, at least, expressing in writing their objection. Additionally, when purchasing a property it is important to ensure that access to it is not through the land of another and if an easement is required for the use of the property (either because of lack of access to the property or for any other reason), it is important to ensure its legal validity prior to purchasing the property.