In Property or Real Estate law it is a well-established principle that certain rights in, or restrictions on, land ‘attach’ themselves to the real property. In other words, these rights or restrictions may carry over from owner to owner and exist in relation to the land rather than who owns it. In practice this has implications such as the realization that despite being the owner of the property other people may proprietary rights to access or restrict the use of your property.
The rights and privileges others may exercise over your property are typically known as easements or a right-of-way. Restriction on the land preventing the owner to use it in a certain way or for a certain thing are knowns as Restrictive Covenants.
EASEMENTS OR RIGHTS OF WAY;
An easement over land refers to the right of another party other than the owner having a right of use over the land. Such rights, which at times are referred to as rights-of-way may arise both by express permission or informally. Easements or rights-of-way can also take various forms but most commonly are possessed and exercised by utilities for maintenance of services such as water, sanitation, sewage lines etc. Telephone lines also commonly possess and exercise such a right in order to maintain telephone lines.
In newly built subdivision it is often seen that developers typically possess a right to ‘re-enter’ into the property which is also an easement. Easements of such a nature are possessed and exercised where developers may need to re-enter into the property to complete any unfinished work in side the new development.
Another form of easement commonly possessed and exercised is known as a maintenance easement. This type of easement generally exists in closely built property where the owner of one property may need to access the adjoining property in order to maintain his or her own property. Any formal or express easement is typically entered the registry at the Land Registry Office.
At times an easement can arise from what is known as permitted use. In such an instance it may be the case that an easement is needed in order to access a land-locked property.
Restrictive covenants are legal restrictions which can be placed on a property whereby the owner’s use of the property may be limited in certain circumstances. This is commonly seen in the development of new subdivisions where the property developer in order to maintain uniformity may impose certain restrictive covenants on the land where by owners may be prevented from parking trucks on their driveways for instance or storing boats, building sheds bigger than a certain size, prohibiting the installment of satellite antennas etc. It is important to note however that restrictive covenants can be challenged and if they are found to be arbitrary or against the public interest, they are not considered binding. Also, restrictive covenants generally expire after a period of ten years.
It is very difficult for an untrained eye or a lay person to assess a property and the rights and restrictions that are attached to it; for this reason, when purchasing a property, the services of an experienced and reputable real-estate lawyer are recommended.
For more information please contact one of our experienced Real Estate Lawyers at MEHDI AU LLP.
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