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Tag: Define Easement

Easement

The right to an easement goes from the time when humanity first emerged from savagery and acquired the habit of being neighbors to one another or respecting one another’s rights. The broad idea that a person should enjoy their property fully and exclusively while avoiding interfering with a neighbor’s lawful enjoyment of his own property rights was deemed essential for the common welfare. It appears that the original tenet of easements was this beneficial principle.

Definition:

Section 4 of the Indian Easements Act defines easement as: An easement is aright which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of , certain other land not his own. Eg.: ‘A’ the owner of the house has a right of way over B’s land. This is for the beneficial enjoyment of As house. This is an Easement.

According to Salmond, “Easement is that legal servient which can be exercised on some other piece of land for the benefit of a piece of land”

Dominant land; parcel of land with the benefit of the easement

Servient Land; parcel of land being burdened by the easement

Positive Easements; give rights of entry onto another person’s land to enable something to be done on the land e.g. right of way, rights to discharge water

Negative Easements; rights to prevent something being done e.g. rights to flow air through defined apertures, to support a building etc

REQUIREMENTS 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;
(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 Ellen borough Park. 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.

CREATION OF EASEMENTS

The title to easement may be by grant, by custom, by prescription or necessity. An easement can be acquired by grant. A grant is given by an agreement executed by a grantor in favour of  a grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land. The deed of easement may be separate or the grant may be included in a deed relating to the dominant heritage.

For example, X sells his land to Y and  by the same deed he may grant a right of way to Y for such land for another land of his. Grant is given by an agreement executed by the grantor in favour of the grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land. 

Easement by virtue of custom is a legal right acquired by the operation of law through continuous use of a land over a long period of time. Therefore the right of way continues to exist by grant, prescription or by virtue of custom.Easements, which are the subject matters of agreement between the parties, are for right of  way, right to air and light. Some easements are acquired by grant and others prescription and custom. Creation of an easement does not mean transfer of property.

In the same manner, surrendering an easement right does not imply transfer of property. Easement can be made, altered and released. Easement right cannot be created or modified orally. It must be in a written form. However, easements by prescription and custom need not be in writing.A deed of grant must clearly mention the purpose of which easement is granted. By the deed of grant the subservient owner gives full and free right to the dominant owner and his successors a passage wide enough for movement of people and vehicles between the dominant owner’s premises and the public road against a price consideration. In Moody v Steggles the grant of a right to fix a signboard to the adjoining property advertising the public house which constituted the dominant tenement was held to comprise an easement.

DURATION AND NATURE OF EASEMENTS

The Indian Easements Act, 1882 states in Section 6 that “An easement may be permanent, for a term of years or other limited period, or subject to periodic interruption, or exercisable only at a particular 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 upon the happening of a specified event or the performance or nonperformance of a specified Act..”

The nature of easements is described in section 7 of the Indian Easement Act, 1882 which states that easements are restrictions of one or 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.(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

Easement

Meaning:

The Indian Easements Act of 1882’s Section 4 defines the term “easement.” According to Section 4’s specifications, an easementary right is a privilege that a landowner or occupier has over another piece of property that is not his own and that is intended to allow for the beneficial use of the property. Because an occupier or owner cannot fully enjoy his own property without this right, it is granted. It also includes the right to take action or continue to take action in relation to or with regard to some other land, other than his own, for the pleasure of his own land.

The term “land” refers to everything that is permanently affixed to the soil, and the phrase “beneficial enjoyment” refers to any amenity or necessity that is convenient, advantageous, or both. The land for whose benefit the easementary right exists is known as Dominant Heritage, and the owner or occupier referenced to in the provision is known as the Dominant Owner. While the land on which the liability is placed is referred to as the Servient Heritage and the owner of the land upon which it is placed as the Serviant Owner, respectively.

Illustrations-

  1. ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to move  out of the street. This is known as right of easement.
  2. A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a surface of certain land is not a right of easement.
  3. X’s right to go on his neighbour Y’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 Y’s land only. Hence, X has an easementary right to pass through Y’s household.

The following six qualities are necessary for an easement:
(1) There must be a dominant and servient tenement;

(2) There must be an easement to accommodate the dominant tenement;

(3) The easement right must be held for the dominant tenement’s good enjoyment.

4) The dominant and servient owners must be distinct individuals;

5) The right must grant the dominant owner the ability to do and continue to do something, or to prevent and continue to prevent something from being done, in, upon, or in respect of the servient tenement; and

6) That something must be of a specific or clearly defined character and may be capable of serving as the basis for a grant

In Nirmala Devi and Ors. v. Ram Sahai and Ors. AIR 2004 All 358, the court laid down that in view of the definition of the Easement in Section 4 of the Easements Act the following materials are required to be present in order to claim an easement right:-
(i) the right is in the owner or occupier of land as such;
(ii) it is for the beneficial enjoyment of that land;
(iii) it is to do or to continue to do something or to prevent or continue to prevent something being done;
(iv) that something is in or upon or in respect of certain other land; and

(v) the other land is not his own.

Essentials of Easements:

1. Dominant and Servient Heritage

Two properties—the dominant and servient heritage—must exist in order to enjoy the privilege of easement. This is because, according to the definition, it refers to the privilege that the owner or occupier of one piece of property might exert over another person’s land in order to benefit from it. A tradition of dominance and servitude cannot coexist. Therefore, it is crucial for two properties to exist and for them to be distinct from one another.

2. Separate owners

Owners of the two properties must be distinct and not belong to the same person in order to exercise the right of easements.

3. Beneficial Enjoyment

The purpose of an easement is to allow the dominant owner to benefit from it in a way that incorporates both explicit and implicit advantages.

4. Positive or Negative

Easements can be beneficial or harmful. Former describes a right that allows the dominant owner to act in order to exercise control over the servient owner’s property. The latter, however, indicates a preventative action. A negative easement is one in which the dominant owner forbids or limits the servient owner from performing some act or acts.

An owner of dominant heritage may perform an act or forbid the servient owner from performing one under the terms of an easement, but he or she cannot obligate the servient owner to do so.
Only when two heritages are next to one another does the easementary right exist. It is a right in rem, which is a right that can be used against anybody or anything. The dominant tenement is always annexed to the right of easement. Re-aliena refers to a right over a servient tenement rather than a right to one’s own land.

Classification of Easements

The Indian Easements Act of 1882’s Section 5 divides easements into the following categories:

  1. Continuous or Discontinuous:The easements that can continue to be enjoyed without the interference of human behavior or human action are known as continuous easements. There is no human meddling, which gives the property a unique charm. Conversely, a right of easement for which a man’s interference is necessary is known as a discontinuous right. It is important for this kind of alleviation that a human action be performed on the servient heritage. Eg: (a) A right annexed to B’s house to receive light by the window without obstruction by his neighbour A. This is a continuous easement.(b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
  2. Apparent or Non- Apparent:An apparent easement is one whose existence may be determined by looking at a dependable sign. It can be seen with a close look and with reasonable foresight. It also goes by the name express easement. A verification of a right’s existence is necessary. For instance, a drain connected the properties of A and B, leading to an open yard. This is an apparent easement that is discernible upon close scrutiny.

A non-Apparent easement, on the other hand, is the exact opposite of an apparent easement. An inspection will not reveal this form of easement. There isn’t a really permanent sign. Although in use, the right is hidden and is therefore referred to as an invisible easement. As an illustration, A’s right was annexed to A’s land to stop B from constructing on his own home.

Difference between easement under the English and Indian Laws

  1. Easement rights are not admissible in India for incorporeal rights; only corporeal property, such as land, is eligible. However, under English law, an easement may also be asserted in relation to an incorporeal right.
  2. A right to an easement is a privilege without compensation under English law. It allows for the exercise of a few rights in relation to the dominant tenement while prohibiting the dominant tenement’s owner from taking a cut of the wealth generated by the servient legacy. Thus, profits a prendere are not included in an easement. An easement also includes earnings a prendere under Indian law. An easement also includes earnings a prendere under Indian law. It includes the right to take pleasure in the income generated by another owner’s soil. The Explanation to Section 4 makes this clear by stating that the phrase “to do something” includes removal and appropriation by the dominant owner for the purpose of enjoying the dominant heritage in a beneficial manner of any portion of the soil of the servient heritage, or anything growing or existing thereon.
  3. According to Indian law, two tenements are not required to be next to one another because “certain other land” that is not owned by the dominant owner is required for the servient legacy. However, according to English law, the heritages must be close by.