Property Update — February 2014: easements
Once again, the issue of whether an easement has been created on a sale off of part of a larger site, with the seller retaining the unsold land, has come before the courts.
The law generally deals more favourably with a buyer to whom not all of the necessary rights were granted than a seller who forgets to reserve an easement in favour of the retained land. As ever, the ideal is for all such matters to be dealt with expressly in the transfer documentation, but in practice this does not always happen.
As a result, the parties either have to negotiate a revised set of grants and reservations (from a position of weakness or strength, as the case may be) or have recourse to the courts to seek a declaration of what rights can be implied…
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