Don’t stumble over easements, rights of way or sporting rights when buying farmland

There are many reasons why you might want to buy agricultural property: to farm, of course, but also perhaps to develop, or to use for hunting or fishing purposes. Woodland, equestrian properties and fishing lakes may be a good investment for a self-invested personal pension (SIPP), or perhaps you simply wish to have a peaceful rural setting for your retirement. 

Whatever your reasons, before you buy you need to ensure the property can actually be used for your intended purposes as there are many legal stumbling blocks that can arise when purchasing farmland, we highlight some of the issues relating to rights of way, easements, and sporting rights.

Rights of way

Many areas of farmland are in remote locations, some distance from a public road, and you will need to ensure you have a right of access to the property. Similarly, other people may have a legal right of way over the property – such as a footpath or bridleway – which might affect your plans for the property.

A right of way is a form ‘easement’ which is essentially a legal right to access or use land owned by someone else in a particular way. An easement can arise in three different ways. These are:

• express grant – where the owner of the property gives permission to use the land for a specified purpose, such as for access;
• implied grant – where the right is not outlined in any deed but will be implied by law because, for example, it would be necessary to use the right of way if the property could not be accessed in any other way; or
• by prescription – which arises if a piece of land has been used continuously in a certain way, for example, as a means of access, without permission or objection from the owner for 20 years or more.

Other easements

Easements take on all forms: they could include a utility company’s right to carry out works on your land or a neighbour’s right to check your drains. They are not, however, restricted to just rights of way – they can also include a restriction on how you use your land, such as a neighbour’s right to prevent you growing tall trees or erecting large structures that block their sunlight.

If the land you wish to buy is registered, our solicitors will find out if there are any easements registered when checking the Land Registry records, or if the land is not yet registered they will check the property deeds.

If during the buying process an easement is discovered that you find objectionable, the best way to resolve the matter will be out of court with the use of negotiation or mediation. You may have to budget to pay your neighbour compensation to encourage them to have the easement lifted.

Sporting rights

If you are buying the property for sporting purposes – to fish, shoot or hunt – it is essential to check the purchase of the property includes the necessary sporting rights as these are often sold separately. If they have already been sold elsewhere, this would entitle the owner of the sporting rights to enter the land and claim whatever they catch as their own.

If you wish to buy a property with sporting rights included, but have no interest in such sports yourself, you could make a tidy sum by granting the sporting rights to someone else. You can either sell them outright or grant a licence for a specified amount of time, with the rights reverting back to you after the agreed period.

It is advisable to make this grant or sale via a formal written deed to avoid any disputes. The agreement should state what rights are involved, the areas of property covered; the type and number of creatures that can be killed; what sporting equipment can be used; and what access and parking is granted to the rights holder. It should also outline who should rear, preserve, and protect the livestock and the restrictions that will be placed on you as landowner to prevent you interfering with the sporting rights.

How we can help

Our specialist team can make all the necessary checks before you buy any farmland to ensure you have all the rights of way and sporting rights you require and that there are no restrictions on your property which would prevent you using it as you wish.

If there are any problematic easements that could spoil your enjoyment of a property, they can negotiate on your behalf to ensure an agreement is reached that satisfies all parties.

If you want to license or sell the sporting rights, they can draft an agreement which is legal and grants the rights intended by both sides.

For more information please contact our office on Malton 01653 692247 or complete our online enquiry form.