Absence of Easements Insurance
Absence of easements insurance is relevant where the title deeds of the property do not contain the necessary easements, or where the legal rights that they do contain are inadequate regarding:
- The use of all or part of the access located on land between the property and the publicly maintainable highway
- The creation, alteration or carrying out of works to an access located on land between the property and the publicly maintainable highway
- The use of existing service media for the purposes of the property where these are laid in, under, over or through land between the property and adopted services or the publicly maintainable highway
- The laying, replacement, renewal, repair or relocation of service media for the use of the property in, under, over or through land between the property and adopted services or the publicly maintainable highway
The private land outside of the title to a property over which access or services are routed is termed as Servient land. Where the Servient land is subject to rights or easements, the owner of that land is prevented from doing anything on their land that would prevent or restrict that use of the easement.
However, in the absence of easements, the owner of the Servient land would be free to gate, fence or build on their land in such a way as to prevent the use of an access way and could interrupt or remove any services for which there were no rights for them to remain in the Servient land.
It is possible to acquire an easement by prescription, i.e. long use, by enjoying the use of an access way, for example, for over 20 years as of right: without secrecy, without force, without permission (nec vi, nec clam, nec precario). However, such easements inevitably carry a degree of uncertainty, particularly in the absence of strong evidence supporting the established use and by their nature are not documented on the title.
Why take out Absence of Easements Insurance?
Whilst the existing owner of a property may have been happy to accept the situation, a new purchaser or their lender is likely to be concerned that the value of the property could be dramatically affected if they are prevented from using the access way or services. Potentially the property could become unusable for the purpose it was acquired if the use of the access or the services is prevented.
In some instances the owner of the Servient land is known or can be identified and, whilst it may be possible to negotiate a suitable easement with them, an absence of easement insurance policy can provide a more immediate and cheaper solution.
A developer wishing to carry out a development of a property will want to ensure that the title to the property has the benefit of all easements necessary to ensure access to the development and also that connections can be made to services. In some instances, although the developer will want to create certainty by negotiating suitable easements with neighbouring land owners, it may not be possible to do this. For example it may not be possible to establish who is the owner of the neighbouring land.
A policy does not remove the issue of the absence of documented easements. However, it does provide protection against financial losses that the property owner could suffer in the event that their use of the easements is prevented or restricted by the owner of the Servient land.
Absence of Easements Insurance Benefits
Absence of easement insurance provides protection against financial losses that might arise in the event of prevention or attempted prevention of the use of an access way or services by the owner of the Servient land.
Generally, a policy will provide cover for loss relating to:
- Damages or compensation awarded against the insured by the courts
- Cost of altering, demolishing and/or reinstating all or any part of the property, including any part of any building or other construction on or forming part of the property
- Costs of obtaining either a legal right to use the easement, or a comparable easement
- Reduction in market value
- Abortive costs of works
- Costs of settlement
- Defence costs
- Cost and expenses incurred with the insurer’s consent
Depending on the circumstances of an individual transaction and our assessment of the risk, cover may be available to cover other losses such as business interruption losses.
An absence of easement insurance policy provides cover in perpetuity and as such can usually benefit successive owners of the property and their lenders.