Guide to our Deed of Grant of Easement Template

Posted by David Cammack on 12th May 2015

This is the guide to our Deed of Easement template agreement. An “easement” is a right for the owner of one property over someone else’s property. Our Deed of Grant of Easement template is for use by a property owner (“the grantor”) who agrees to grant a new right over its property to the owner of a neighbouring property – “the grantee”. It is intended to be used to grant a permanent right that can be enjoyed by anyone buying the grantee’s property in the future, e.g. a right of way for vehicles or pedestrians, a right of access for repair or a right of way for utility cables or pipes. Using this deed you can grant a “legal easement” by “express grant”.

This agreement incorporates various options, so it is appropriate:
1. where there is or is not a charge on the grantor’s property (see below); and
2. whatever the nature of the easement.

If the grantor’s property is charged to a third party (e.g. mortgaged to a bank or building society – “the chargee”) then it is likely the terms of the charge/mortgage will not permit any new easements to be granted unless the chargee has provided written consent, so this draft provides for that and for the chargee also to sign the agreement.

Clauses in this Deed of Grant of Easement

Date – Insert just the year at this stage. Handwrite the rest of the date in the agreement once all the parties have signed it.

Party clauses – You will need to insert the names and addresses of party 1 (the grantor) and party 2 (the grantee). If they are companies, insert the country where they are incorporated and their company number and delete the words “[PERSON’S NAME] of [RESIDENTIAL ADDRESS]”; otherwise fill in their name and home address and delete the remaining words that relate to a company. If there is a chargee, then insert the details as party 3 in the same manner; otherwise delete party 3.

Background

(B) If there is no chargee, delete this paragraph.

Numbered clauses

1. Interpretation – This clause defines the main terms used in the licence.

  • Charge – insert the details of the charge, using the first version if the Grantor’s Property is registered land and the second one if it is not. If there is no chargee, then delete the definition.
  • Grantee’s Property – insert the details of the grantee’s property, preferably with full postal address and title number if it is registered land. If it is not registered land, delete the last phrase that is in square brackets.
  • Grantor’s Property – insert the details of the grantor’s property, preferably with full postal address and title number if it is registered land. If it is not registered land, delete the last phrase that is in square brackets.
  • Plan – usually it is necessary to have a scale plan drawn up (often the one registered at the Land Registry will not be sufficiently detailed) and to mark on it the permitted route of any easement, e.g. the area that a right or way must follow, to avoid any arguments later on.

2. Grant – This clause provides for the grant of the easement to be made in return for a payment. Fill in the amount being paid in clause 2.1 (NB this should include a sum for the legal costs or other expenses of the grantor, e.g. the cost of scale plan being drawn up to show the route of the easement).

3. Covenants – This clause refers to specific restrictions in schedules 2 and 3 agreed to by the grantor and the grantee.

4. Chargee’s consent – clause 3.1 provides for the chargee to consent to the easement being granted. In clause 3.2 the grantee or grantor (complete which one) may need to pay for the chargee’s costs of so consenting, e.g. legal costs (NB this might need to be included in the figure in clause 2.1 if the grantor is paying it). If there is no chargee, delete the whole of clause 4.

5. Registration – if the grantor’s or grantee’s property is registered land (or both are) or either become so registered in the future, then the easement will need to be noted on the registered title(s).The Land Registry have a  guide on this process, which you can find here: https://www.gov.uk/government/publications/easements/practice-guide-62-easementsIn that guide, see section 2.1 about using a form AP1 (available for free from their website) to register the easement.

6. Indemnity – The grantee is responsible to the grantor if there is a breach of this agreement or the rights are exercised in a manner which causes damage to the grantor’s property, e.g. a right of access is used by a heavy digger/lorry and causes damage to the grantor’s driveway.

7. Joint and several liability – This clause provides that where the tenant or sub-tenant comprises more than one person or company, each of them is fully liable to the landlord for all sums due and compliance with all obligations on them. If one of them dies, his/her estate remains liable.

8. VAT – If VAT applies the grantee will pay the VAT to the grantor. (The grantor should in return provide a proper VAT invoice to the grantee.)

9. Transfer of the Grantee’s Property – if there are any “positive covenants” on the part of the grantee, e.g. to pay for the maintenance of a shared driveway where the easement is a right of way over the driveway, then this clause should be included, as you cannot otherwise easily bind a buyer of the grantee’s property to a positive covenant. Positive covenants generally require the party bound by then to do something e.g. pay money or maintain something, e.g. a drive or a fence, etc (as contrasted with negative covenants which ban a party from doing something – negative covenants are binding without the need for clause 9). The reference to the “deed of adherence” in clause 9.1 means the transferee of the grantee’s property will sign such a document at the time it buys the property (NB no such draft is included in this deed). To enforce this, a suitable restriction needs registering at the Land Registry over the grantee’s property – see the wording after clause 9.2. If there are no positive covenants, then delete the whole of clause 9.

Schedule 1 – here you should set out clearly what the easement right(s) is/are – if it/they can be shown on the plan, then say what colour on the plan identifies them, e.g. “as shown by the area cross-hatched in yellow on the Plan” or “as shown by the line in red on the Plan”. If there are several different types of rights with different routes, they will each need a separate colour. Remember if utility pipes or cables are being laid, they will need an accompanying right of way to the grantee for inspection and maintenance of them.

Schedule 2 – the grantee must not cause trouble as a result of the exercise of the easement.

Schedule 3 – the grantor must not go back on the grant and disrupt the grantee’s exercise of the easement.

Schedule 4 – subject to the grant made, the grantor reserves the right to use its property as normal. If there are other specific rights the grantor is reserving (depending on the nature of the easement right granted), then add them in here. If not, delete the last bullet point.