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Easement
INTRODUCTION :-
An easement is a right permitted by law to occupy or use another
person’s land for a particular purpose. The use of the land here is
limited, and the original owner retains lawful title of the
land. A legally binding easement ought to be in writing, the exact
location is stipulated in the property’s deed. Easements commonly
provides utility companies access for the purpose of installing and
maintaining power, phone, and cable lines, as well as for water drainage
purposes.The term easement is derived from the Latin word
‘aisementum’ which means comfort, convenience or privilege, and later
on developed into a legal right or privilege of using something not one's
own.In the words of a well renounced jurist Salmond, easement is a
legal servient which can be exercised on some other piece of land
specifically for the beneficial enjoyment of one’s own land. Right of
easement is a form of privilege, the integral part of this privilege is to do
an act or prevent certain acts on some other land for enjoyment of one’s
own land.
CONCEPT OF EASEMENT :-
Easement is a right, which the owner or occupier of certain land
possesses as such, for the beneficial enjoyment of that land to perform
and continue to perform something, or to avert and continue to avert
something being done, in or upon, or in respect of, certain other land
which is not his own. The land for the beneficial enjoyment of which the
right exists is known as the dominant heritage and the owner or
occupier of such land is called the dominant owner. The piece of land
on which the liability is trusted upon is called the servient heritage and
the owner or occupier of such land is called the servient owner. The
concept of easement has been defined under Section 4 of The Indian
Easements Act,
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1882. According to the provisions of section, an easement right is a
right possessed by the owner or occupier of the land on some other
land, not his own, the purpose of which is to provide the beneficial
enjoyment of the land. This right is granted because without the
existence of this right an occupier or owner cannot fully enjoy his own
property. It includes the right to do or continue to do something or to
prevent or to continue to prevent something in connection with or in
respect of some other land, which is not his own, for the enjoyment
of his own land. The word ‘land’ refers to everything permanently
attached to the earth and the words ‘beneficial enjoyment’ denotes
convenience, advantage or any amenity or any necessity. The occupier
or the owner referred to in the provision is known as the Dominant
Owner and the land for the benefit of which the easementary right exists
is called Dominant Heritage.Whereas the owner upon whose land the
liability is imposed is known as the Servient Owner and the land on
which such a liability is imposed to do or prevent something, is known
as the Servient Heritage
Illustrations-
1. ‘A’ being the owner of certain land or house has a right of way over
B’s house, adjacent to his house, to move out of the street. This is
known as right of easement.
2. Q’s right to go on his neighbor R’s household for fetching water from
the well for the purpose of his own household is a right of easement.
Here, the way to the well is through R’s land only. Hence, Q has an
easementary right to pass through R’s household.
REQUIREMNTS OF A VALID EASEMENT :-
The essential features of an easement, in the strict sense of the
doctrine, are as follows:
(a) It is an incorporeal right; a right to the utilize and enjoyment of land
not to the land itself;
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(b) it is trusted upon corporeal property;
(c) it demands for its constitution two distinct tenements the “dominant
tenement” which enjoys the right, and the “servient tenement” which
submits to it. The characteristics that are required for the validity of an
easement has been laid down by the court in Re Ellenborough Parkvi.
The Court of Appeal had to decide the status with respect to a right for
residents to use a garden in the middle of a square around which their
houses were built.
TYPES OF EASEMENT :-
There are four different types of easement Section 5 of Indian
Easement Act explain the various types of easement. It provides that
the easements are either discontinuous or continuous, apparent or
non-apparent.
A) Continuous Easement -A continuous easement is one whose
enjoyment is, or may be, continual without the act of a human being.
Illustration -A right annexed to Y’s house to receive light by the windows
without obstruction by his neighbor X. This is a continuous easement.
X continuous easement is extinguished when it is totally cease to be
enjoyed as such for an unbroken period of 20 years.
B) Discontinuous easement - A discontinuous easement is one that
needs the act of human being for its enjoyment. Illustration - A right of
way annexed to Q’s house over R’s land. This is a discontinuous
easement.
C) Apparent easement - An apparent easement is that type of
easement which is shown by some permanent sign which, upon careful
inspection by a competent person, would be visible to him. Illustration-
Rights annexed to L's land to lead water thither across M's land by an
aqueduct and to draw off water thence by a drain. The drain would be
found upon careful inspection by a person conversant with such
matters. This is called as apparent easements.
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D) Non-apparent easement - A non-apparent easement is the one that
has no such sign. Illustration -A right annexed to Y's house to prevent Z
from building on his own land.This is a non-apparent easement.
CREATION OF EASEMENT :-
Easements are usually created by conveyance in a deed, or some other
written document such as a will or contract. Creation an easement
demands for the same formalities as the transferring or creating of other
interests in land do, which typically are: a signature, a written
instrument, and proper delivery of the document. In limited
circumstances, the court would create an easement by implying its
existence based on the circumstances.ix Two familiar easements
created by implication are easements of necessity and easements
implied from quasi-easements. Easements of necessity is typically
implied to provide access to a landlocked fragment of property.
Easements implied from quasi-easements are based on a landowner's
prior utilization of part of his property for the benefit of another portion of
his land. Other methods of establishing easements are prescriptive use
(the routine, adverse use of another's land), estoppel, custom, public
trust, and condemnation.
For example, A sells his land to B and by the same deed he may grant
a right of way to B for such land for another land of his. Grant is
provided by an agreement executed by the grantor in favour of the
grantee for specific consideration. The grant comes into effect when the
grantee has the right to enter upon the grantor’s land. Easement by
virtue of custom is nothing but a legal right which is acquired by the
operation of law through continuous use of a land over a long period of
time. Henceforth the right of way continues to exist by prescription,
grant or by virtue of custom. Easements, which are the subject matters
of agreement between the two parties, are for right of way, right to air
and light. Surrendering an easement right does not refer to transfer of
property. Easement can be made, altered and even released. Easement
right cannot be created or altered orally. It must be in a written format.
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MODES OF AQUISITION OF EASEMENT :-
1)Express Grant: One of the most direct method of creating an
easement is by Express grant. Express easements are created by
means of a written agreement between the landowners grant in for
receiving an easement. An Express easement is created by either
a deed or by will. Therefore, it must be in writing. Express easement
ought to be signed by both the parties and are recorded with the deeds
to each other. An Express easement can also be created by the owner
of a certain piece of property when he conveys the land to another but
reserves or saves and easement in it. This arrangement is known as
easement by reservation.
2) Implied Circumstances: Easementary right can be acquired under
implied circumstances in the following ways-
2.) Easement of Necessity:-
. This specifically deals with the circumstances where the owner or
occupier is not privileged to use his property without exercising the right
of easement over the servient heritage. Thus, absolute necessity is
considered to be the test and the convenience.
For example– A sells his land to B for agricultural purpose. Here, B
cannot access his land without passing through C’s land (his neighbor).
Thus, this is an easement of necessity.
3.) Quasi Easements:-
In the case of a person transferring his property to another person then-
If an easement is continuous, apparent and necessary to enjoy, then in
such a case the transferee shall be entitled to it,
▪ If such an easement is continuous, apparent and necessary to enjoy
the said property, the transferor has a right to such easement over
property transferred by him
▪ In case of partition of the property of the joint family, if an easement is
continuous,
apparent and necessary to enjoy the share of one coparcener over the
other coparcener,bthen he is entitled to such a right of easement.xv
Easements are quasi as those arise out of circumstances, that is, when
common properties are converted into tenements by means of sale,
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mortgage, partition or through any other form of transfer. In such of a
case, there is an implied grant of right of easement.
For example– A’s right attached to B’s house to receive air and light
through a window without any obstruction by his neighbor.
4.) Prescriptive Easements:
Section 15xviprovides for this type. Following are the requisites-
• Right must be definite and certain,
• Right must have been independently enjoyed without any agreement
with the servient owner,
• Must be enjoyed openly, peacefully and as of a right without any
interruption for a continuous period of 20 years and in respect of any
government land the period of non- interruption shall be 30 years.
5.) Customary Easements
An easement right can be acquired by virtue of a local custom. This is
known as customary easements. For example- people living in a
particular town or city having a right to bury the dead in a particular area
or riparian right to use water.
NATURE AND DURATION OF EASEMENT :-
According to Section 6xx of the Easements Act, 1882, “An easement
may be permanent, or for a term of years or other limited period, or
subject to periodical interruption, or exercisable only at a certain place,
or at certain times, or between certain hours, or for a particular purpose,
or on condition that it shall commerce or become void or voidable on the
happening of a specified event or the performance or non-performance
of a specified Act.” The nature of easements is described under Section
7 of the Act, 1882 which states that easements are restrictions of one or
the other of the following rights, namely:
(a) Exclusive right to enjoy - The exclusive right of every owner of
immovable property (subject to any law for the time being in force) to
enjoy and dispose of the same and all products thereof and accessions
thereto.
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(b) Rights to advantages arising from situation the right of every owner
of immovable property (subject to any law for the time being in force) to
enjoy without disturbance by another the natural advantages arising
from its situation.
TERMINATION, SUSPENSION AND REVIVAL OF EASEMENTS :-
Usually, mere non- use of property does not end an easement. One or
more of the following factors might also have to be present.
Extinction by dissolution of right of servient owner: When, due to a
cause which preceded the imposition of an easement, the person by
whom it was imposed discontinues to have rights on the servient
heritage, the easement considered to be extinguished.
For example, X transfers Sultanpur to Y on condition that he does not
marry Z, Y impress an easement on Sultanpur. Then Y marries Z, Y’s
interest in Sultanpur ends, and with it the easement is extinguished.
Agreement to terminate by grantor and the grantee of the
easement: An easement is considered to be extinguished when the
dominant owner releases it, either expressly or impliedly, to the servient
owner. Such release can only be made in the circumstances and to the
extent in, and to which the dominant owner can alienate the dominant
heritage. An easement may be released only of the servient heritage.
Likewise, as per section 39xxiii of the Indian Easements Act, 1870 an
easement is terminated when the servient owner, in exercise of power
reserved in this behalf, revokes the easement. Expiration of the time
allowed for the easement: An easement is terminated where it has been
imposed for a limited period of time, or acquired on condition that it shall
become void on the performance or non-performance of a specific act,
and the period either expires or the condition is fulfilled.
Abandonment or expressed intent to discontinue use of the
easement: A continuous easement a discontinuous easement is
extinguished when it completely ceases to be enjoyed as such for an
unbroken period of about twenty years. With respect to a continuous
easement, from the very day of its enjoyment, was obstructed by the
servient owner or rendered not possible by the dominant owner; and, in
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the case of a discontinuous easement, from the day on which it was last
enjoyed by the person as a dominant owner.
Merger where one person buys both dominant and servient
tenement: An easement isextinguished when the same person
becomes entitled to the absolute ownership of the whole of the
dominant as well as servient heritages. For example, X, as the owner of
a house, has a right of way over Y’s field. X mortgages his house, and Y
mortgages his field to Z. Then Z forecloses both mortgages and
becomes thereby absolute owner of both house and field. The right of
way is extinguished. Extinction by end of necessity in case of easement
by necessity: An easement of necessity is extinguished when the
necessity ceases. For example, X grant Y a field inaccessible except by
passing over X’s adjoining land, Y afterwards purchases a part of that
land over which he can pass to his field. The right of way over X’s land
which Y has acquired is extinguished.
Extinction by Destruction of Subject Matter: An easement is
extinguished when either the dominant or the servient heritage is totally
destroyed. For example, P has a right of way over a road running along
the foot of a sea cliff. The road is washed away by a permanent
encroachment of the sea. P’s easement is extinguished. Suspension of
Easement: An easement is suspended when the dominant owner
becomes entitled to possession of the servient heritage for a limited
interest or when the servient owner becomes entitled to possession of
the dominant heritage for a limited interest. For example: X has a right
of way of Y’s land obtains for lease his land, the easementary right of
way is suspended durin the period.
Revival of Easements: An easement extinguished under Section 45
revives when the destroyed heritage is, before the completion of twenty
years has expired, restored by the deposit of alluvion or, when the
destroyed heritage is a servant building and before twenty years have
expired such building is rebuilt on the same site, and when the
destroyed heritage is a dominate building and before the twenty years
have expired such building is rebuilt on the same site and in such a
manner as not to impose burden on the servant heritage. An easement
extinguished under Section 46 is revived when the grant or bequest by
which the unity of ownership was produced, is set aside by the decree
of a competent Court of law. A necessary easement extinguished under
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the same section is revived when the unity of ownership ceases due to
any other cause.
CONCLUSION
Unlike lease, an easement does not provide the holder a right of
"possession" of the property. Therefore, an easementary right is a
provision made for specific relief from specific violations of common
basic rights. In the case of the right to way, any unlawful interference
with the right of way constitutes a nuisance. However, a right of way
doesn’t entitles the grantee, or those lawfully using the way under the
grant, to the exclusive use of the land over which the way exists neither
does every obstruction of the way amounts to an unlawful interference,
and no action would comply unless there is a substantial interference
with the easement granted. In the case of right to access of light, it does
not constitute the right to have a continuance of the same amount of
light throughout. In case of a diminution, the dominant owner ought to
show that the diminution has interfered with his ordinary course of life
and it results in a nuisance if it is enough to render the occupation of the
house uncomfortable, and obstructs the owner from carrying his
business as beneficially as he formerly did.
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Bibliography
Sites :-
https://lawbhoomi.com
https://www.indiacode.nic.in
https://blog.ipleaders.com
Book :-
The Indian easement Act : Joshi
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Acknowledgement
I would like to express my special thanks and
gratitude to my teacher Dr. Akshaya Shukla
Advocate, Who gave me the golden opportunity to
do this wonderful project of Transfer of property
Act and Easement on topic easement, she also
helped me in completing my project. I came to
know about so many new things Im really thankful
to them. Secondly I would also like to thank my
parents and friends who helped me a lot in
finalising this project within the limited time frame.
Varsha PaIX nwar
BA LLB. sem
Roll no. 21BAL30122
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Index
●Introduction
●Concept of Easement
●Requirements of a valid easement
●Types of easement
●Creation of easement
●Modes of acquisition of easement
●Nature and duration of easement
●Termination, suspension and revival of
easement
●Conclusion
