Lift and shift: can you flex your easements?
A question faced by landowners who wish to develop their property, or those seeking to buy property for development, is what to do when that property is subject to existing rights and easements e.g. service easements or access rights which benefit other land and those rights and easements would prevent or hinder the proposed development. This article explores the approach that can be taken to affect an alteration of such a right to enable development to proceed.
First, the party proposing to develop should check the Deed of Grant or Transfer which created the rights. What is their extent? Who might exercise them? It is important to consider all potential beneficiaries and there may have been a sale of part of the benefiting land creating more parties using the rights.
Where such rights exist, but are not exercised, it may be possible to negotiate the release of the right with the owner of the benefiting land (“Benefiting Landowner”). This will usually require the payment of a sum of money in exchange for the release. The situation is more difficult to navigate where the right is currently being exercised and there is no benefit to the Benefiting Landowner in agreeing an alteration or release of the right.
This problem may have been anticipated in the grant of the right and the original deed may contain a ‘lift and shift’ provision. A lift and shift provision allows the owner of the land burdened by the right(s) (“Burdened Landowner”) to require the Benefiting Landowner to alter the right where the Burdened Landowner requires it e.g. by varying the route of a right of way. The Burdened Landowner will usually be required to provide a right that is no less commodious or convenient as the right that is being replaced or altered. The provision may also require that a temporary right is provided whilst the intended permanent right is put in place, e.g. a temporary access route whilst the new access is being constructed, or the payment of compensation to the Benefiting Landowner for any temporary loss of amenity.
Where the deed that created the right does not contain a lift and shift provision, generally there is no right for the Burdened Landowner to unilaterally vary the terms of the right and it will be necessary for the Burdened Landowner to enter into negotiations with the Benefiting Landowner to seek the alteration of the right. There will be no obligation on the Benefiting Landowner to agree to alter the right and the Burdened Landowner could find that they are ‘held to ransom’ by the Benefiting Landowner in order to acquire the alteration. Depending on the development proposals there may, however, be some advantage to the Benefiting Landowner in agreeing the alteration as it may open their land to development. Otherwise in the absence of a lift and shift provision a decision needs to be made whether the site is adequate for the proposed development with the existing rights in place. If not, this may be a reason to withdraw from a purchase.
If negotiations are successful or a lift and shift provision exists and is exercised, then the right must be amended formally and noted at HM Land Registry. There are two ways this can done: either by a surrender of the original deed and regrant of the right, or, by a deed of variation which would vary the existing deed. It would be prudent to include another lift and shift provision within the new deed in case the right requires amendment again in the future.
When granting rights of way or rights to install service apparatus it is always wise for the Burdened Landowner to consider the current and potential future use of their land, however distant or unlikely it may seem, and include a lift and shift provision in the deed or transfer.
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