An easement is the right of a property owner to compel the owner of another property to allow or refrain from doing something on a secondary element for the benefit of the dominant tenement. For example – right of way, right of light, right of air etc.
A right in rem is almost like a privilege, the deprivation of which the owner of one apartment has the right to enjoy in respect of that apartment in or over the tenement of another person, because of which the latter is obliged to suffer or refrain from something in his own tenement for the benefit of the former. The right in rem must have the following requirements:
i. A dominant and well-preserved apartment building
ii. The easement should accommodate the dominant apartment building
iii. The easement must be held for the beneficial use of the dominant tenement.
iv. The dominant and surviving owners must be different persons.
v. Rights of easement should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something from being done to or in relation to a neighbouring tenement; and
vi. Something must have a definite or well-defined character and be capable of forming the subject of the grant
The concept of easement was defined in Section 4 of the Indian Easements Act, 1882. According to the provisions of Section 4, an easement is a right which the owner or user of land has over land other than his own, the purpose of which is to provide beneficial enjoyment of the land. This right is granted because without the existence of this right the user or owner cannot fully enjoy his own property.
It includes the right to do or continue to do something or prevent or continue to prevent something in relation to another’s land or in relation to another’s land other than his for the use of his own land.
The word “land” refers to anything permanently attached to the land and the words “beneficial enjoyment” refers to convenience, advantage or any convenience or any necessity. The owner or user named in the stipulation is called the Dominant Owner and the land in favour of which the easement exists is called the Dominant Succession. While the owner on whose land the liability is imposed is known as Servient Owner and the land on which such liability is imposed to do or prevent something is known as Servient Heritage.
Essentials of Easements
- Dominant and servile inheritance
In order to enjoy the right from the easement, the existence of two real estates, i.e., dominant and servient inheritance, is necessary. This is because, by definition, it is a right exercised by the owner or user of one piece of land to enjoy the benefits of his land over another person’s land. Dominant and serving inheritance cannot be one. What is essential is therefore the existence of two properties and the fact that they are separate from each other. - Sole proprietors
In order to exercise the right from an easement, the owners of both properties must be different and not the same person. - Beneficial enjoyment
Easements are intended to be enjoyed by the dominant owner in a manner that includes both express and implied benefits. - Positive or Negative
Encumbrances can be positive or negative. The first relates to the right by which the dominant owner does some act to enforce the right to the servient owner’s land. While the latter denotes the act of prevention. In a negative easement, the dominant owner prevents or restricts the servient owner from performing a certain act or acts.
In the law of easement, the owner of the dominant estate can do an act or prevent the servient owner from doing something, but he cannot bind the servient owner to do something for him.
A real right exists only if two inheritances are side by side. It is a right in rem, which means a right available to the whole world. An easement as a right is always attached to the dominant tenement. This is the right of alienation, which means the right to a service tenement and not to one’s own land.
Classification of Easements
Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–
Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued without the intervention of any human conduct or act of a man. There is no interference by a man and it adds special quality to the property. While, on the other hand, right of easement for the enjoyment which an interference of a man is required is known as discontinuous. In this kind of easement, it is necessary that a human act is done on the servient heritage.
Apparent or Non- Apparent
An apparent easement is one the existence of which can be seen through a permanent sign. It can be visible by a careful examination and on reasonable foresightedness. It is also known as express easement. An inspection is required to check the existence of a right. For example- There is a drain from A’s land to B’s land and from there it led to an open yard. This can be visible through a clear inspection and is an apparent easement.
Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of easement is not visible through an inspection. There is no permanent sign as such. The right is in use but is not visible and thus, is known as an invisible easement. For example, As right annexed to A’s land to prevent B from building on his own house.
Another example to explain non-apparent easement is that the right to stop construction over a certain height.
Limitations or Conditions of Easements
An easementary right may be permanent or for a period of years or for a limited term. It can also be subjected to periodical interruption or may be exercisable at a particular place, between certain hours and for a certain or particular purpose. This right can also be granted on a condition that such a right shall become void or voidable on happening of some event or non performing of some act. These limitations or conditions which regard to the right of easement has been specified under Section 6 of the Act.
Restrictive Easements
Section 7 specifies that the easements are restrictive of certain rights which are as follows-
• Exclusive right to enjoy
• Right to advantages arising out of the situation
Profit a Prendre
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of easements. An instance to explain the concept is, a right to take earth from the land of the other person for making an earthenware is a profit a prendre. This is basically a profit made out of the land of the other person. Other examples of profit a prendre-
• Right of fishery
• Right to take fruits of trees in the season
This is the right which is exercised on the land appurtenant to the dominant heritage. Hence, there shall be the existence of two heritages i.e., dominant and servient. The owner of the dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do something on the land of servient tenement for more beneficial enjoyment of the dominant heritage.
Modes of Acquisition of Easements
Express Grant
The easement can be acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it compulsory for it to be in writing and duly registered.
Implied Circumstances
Easementary right can be acquired in implied circumstances in the following ways-
• Easement of Necessity
Section 13 of the act deals with this. This consists of the circumstances where the owner or occupier cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.
For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.
When a joint property is partitioned amongst various coparceners and if right of easement over one share of the property is essential for the enjoyment of the share of the other coparcener, then latter shall be entitled to easement.
• 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, then he is entitled to such a right of easement.
Easements are quasi as those are arising out of circumstances. When common properties are converted into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of right of easement.
For example– Ps right attached to Q’s house to receive air and light through a window without any obstruction by his neighbour. This is a continuous.
• Prescriptive Easements
Section 15 provides 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.
• Customary Easements
An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town having a right to bury the dead in a particular area or riparian right to use water.
Extinction of Easements
Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of extinction of easements.
• Dissolution of Servient Owner’s right
In the situation where the grantor ceases to have any right in the servient tenement because of some reason, then the right of easements ceases to exist as well. This has been specified under Section 37 of the Act. For e.g.- X grants a piece of land to Y for a period of 20 years in the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end. Thus, easementary right granted to Z ceases to end as well.
• Expiry of time or happening of an event
When an easement is acquired on certain conditions or for certain purpose or for certain period of time. On the fulfilment of such condition or purpose or expiry of the time, the right of easement extinguishes as well as in accordance with Section 6 of the Act.
• Extinction by release
Where in a situation the owner of the dominant heritage releases the right of easement to the servient owner, the right ceases to exist. Such a release can be both expressly or impliedly made. For e.g.- P has a right to discharge water through the eaves to Q’s yard. P authorized Q to construct a building to such a height as not be able to discharge water. Q builds it and Ps right comes to an end.
• Termination of necessity
When necessity terminates the easement of necessity terminates as well. For example- A grants a piece of land to B on which easement of necessity for B is the right of his way over A’s land. Later on, B purchases a part of the A’s land over which he may pass to reach his own land. Here, the necessity has ended and so does the easement.
• Useless Easements
When easement is of such a nature that is not useful or becomes incapable of being beneficial at any time or under any circumstances, then the right of easement ends.
• Permanent change in the Dominant Heritage
When the nature of the dominant heritage changes permanently with increase in burden on tenement, then the right of easement ceases to exist as the purpose of it was the beneficial enjoyment of the dominant heritage. For example- A’s house is located such that he has a right of way by passing through B’s house. Later, due to earthquake, B’s house got cut off and thus, right of easement ends.
• Extinction by destruction of either of heritages
When either of heritages gets destroyed, the easement ends as it is essential for two properties to exist for exercising the right.
• Unity by ownership
By unity of ownership, it is indicated that when one person becomes the owner of both the dominant and servient heritage then the right of easement terminates. For instance, A has right of easement over B’s property. Later on, A purchases B’s property and becomes the owner of B’s property. In such a case, easement extinguishes.
Another example which can be stated her to explain the concept is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement terminates.
Suspension of Easements
Section 49 of the Act provides that easement can be suspended under the following circumstances- - An easement is or can be suspended when the dominant owner becomes entitled to the possession of servient heritage for a limited interest. An example which can be stated here to explain the concept is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement suspends.
- When the servient owner becomes entitled to the possession of dominant heritage for a limited interest, the easement is suspended.
Thus, where both the dominant and servient owner becomes one, easement is suspended.
Revival of Easements
Section 51 of the Act provides for the situations wherein easement suspended or extinguished can be revived, which are as follows- - When an easement is extinguished by destruction of either of the heritages then it can be revived-
• If the heritage is restored in 20 years.
• If the heritage is rebuilt in 20 years - In case of unity of ownership, if the unity breaks due to some reason, then easementary right can be revived and also through an order of a competent court.
Licenses
Section 52 of the Act deals with the concept of licenses. Where one person grants to another person a right to do or continue to do something in or upon the immovable property of the grantor, something which if he does will be unlawful without the prior permission or the availability of the grant. Such a right shall not amount to an easmentary right or creation of interest in the property.
Essentials of licenses - It is a permission granted, i.e., a right arising out of permission.
- Legalises an act.
- Is revocable on the act of the grantor.
- It is always in respect of immovable property.
- It is a right in personam.
Revocation of licenses
License can be revoked in following ways- - If from the cause of preceding the grant, the grantor himself ceases to have any interest in the property, the license gets revoked. Grantor’s interest comes to an end.
- By express and implied release of the license by licensee.
- There are certain cases wherein a license is issued under certain conditions or limitations. This includes a license issued on a condition that if a certain act is doe or is not performed then the license may become void. In such a situation wherein, these acts are performed then license can be revoked. Also, licenses are granted for the fulfilment of certain acts and once it is fulfilled license can be revoked.
- Where a property in relation to which a license was granted gets destroyed due to any reason, then a license can be revoked.
- Where, a licensee himself becomes the owner of the property for which license was granted, then the purpose for which license was granted ceases to exist and thus, the license also ceases to exist and gets terminated.
- When licensee does not use it for a period of 20 years then the license gets revoked.
Transferable Licenses
According to Section 56 of the Act, a license can be transferable under the following conditions- - A license to participate in a place of public entertainment may be transferred by the licensee. This may be obtained from a grant or contract or from surrounding circumstances or local usage. For example, P grants Q the right to walk across P’s field whenever he likes. The right is not attached to any real estate Q. The right cannot be transferred.
- Transfer by Licensee – As a general rule, a licensee cannot transfer its license. If they transfer, then the transferee becomes a trespasser and may or may not be evicted.
Irrevocable Licenses
Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled with a transfer of the property, then it is irrevocable.
A license coupled with an interest in a land is binding. A license coupled with profit a prendre is irrevocable, for example, right to excavate earth and carry it to make earthen wares, right to cut and carry timber on payment of royalty.
If the licensee, has executed some work which is permanent in nature and has incurred expenses, the licence cannot be revoked and hence, is irrevocable. For example, there are two companies, namely X and Y having lands adjoining to each other. The agents were common who managed to put up the building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in Ramson V.
Tabular difference between Licenses and Easements
License Easements - License is a form of personal right attached to an immovable property. 1. Right of easement is a right appurtenant to immovable property.
- It is a right in personam. 2. It is a right in rem.
- This right cannot be attached. 3. It is a right which can be annexed to the property to which it is attached.
- License is revocable. 4. Easements are not revocable at all.
- It is a permission given by the licensor i.e the grantor. 6. It is acquired as of a right.
- Ayyaswami Gounder and Ors. vs. Munnuswamy Gounder and Ors. (25.09.1984 – SC): MANU/SC/0226/1984
Facts: The parties are descendants from a common ancestor and they owned joint properties. A partition took place between the parties where under survey Nos. 95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot where the common well is situated and the channel running from that common well were, however, kept joint for the common enjoyment of the parties. The defendants objected to the use of the common land and the common channel for taking water from their exclusive well. Hence the plaintiffs filed the suit. The trial court by its judgment found that the plaintiffs being co-owners of the common property were entitled to use the property in the way most advantageous to them and the and the common channel for taking water from their exclusive well. Hence the plaintiffs filed the suit. The trial court by its judgment found that the plaintiffs being co-owners of the common property were entitled to use the property in the way most advantageous to them and the defendants having not pleaded or proved any damage or loss to the common property cannot obstruct the plaintiffs from taking water to their lands from their exclusive well through the common channel. On the first appeal by the defendants, with the little modification the first Appellate Court confirmed the decree of the trial court. The defendants feeling aggrieved took up the matter in second appeal and the High Court reversed the judgments and decrees of the two courts below and dismissed the suit holding that the plaintiffs did not acquire any right either by grant or by prescription by way of easement. The plaintiffs-appellants have now approached this, Court.
Held: In absence of any specific pleading regarding detriment to respondents-defendants, appellants-plaintiffs have every right to use common land and common channel. Appellants were claiming their right on basis of admitted co-ownership rights which includes unrestricted user, unlimited in point of disposition, and High Court was not justified in holding that appellants’ right to take water was not acquired by any grant from respondents or from any other sale deed. Right of co-ownership presupposes a bundle of rights which has been lost sight of by High Court. Appellants claim easementary right only as an alternative ground but main ground on which they based their claim is on right of co-ownership. In these days of scarcity when every effort is being made at all levels to increase agricultural production to country’s teeming millions it would not be desirable to allow respondents to create any hurdle in irrigation of appellants’ plots through common channel from their exclusive well. Thus, neither law nor expediency warrants a conclusion as desired by respondents
Ambaram Popat Vankar vs. Budhalal Mahasukram Shah (15.01.1943 – BOMHC): MANU/MH/0129/1943
Facts: The plaintiff possessed a lease of land on which he erected a building, which building had windows overlooking the adjoining land which belonged to the plaintiff’s lessor. There was a division of the freehold interest, the freehold of the land leased to the plaintiff going to the sons of the former owner, and the freehold of the alleged servient tenement, to his grandsons. The plaintiff acquired the freehold of the property on which he held the lease, and the defendant acquired the adjoining land, that is to say, the alleged servient tenement.” This suit was filed. It is, therefore, clear that the plaintiff cannot prove twenty years’ enjoyment of light and air through his windows without including part of the period when the alleged servient tenement belonged to his landlord.
Held: An easement of light, like any other easement, must be acquired, under Section 12, by the owner, or on his behalf, by the person in] possession. Therefore, if the lessee acquires a right to light, he acquires it on behalf of the owner which means the absolute owner, and he cannot acquire it on behalf of the owner as against such owner, A man cannot acquire an easement as against himself. In present case, a lessee cannot acquire by prescription a right to light over adjoining property which belongs to his landlord.
Conclusion
Indian Easements Act provides the entire concept of easement law and its regulation in India. An easement within the meaning of § 4 of the Act is the right that the owner of the dominant inheritance has to the inheritance of the subject owner for the purpose of beneficial use of his own land. It not only defines what easements actually consist of, but also lists their classification. Easements can be prescriptive, customary, quasi and by necessity.
Subsequently, the methods of acquiring encumbrances were adjusted according to Section 7 of the aforementioned Act, according to which they can be acquired by explicit grant or are considered an implied right under certain circumstances. If the easement is to be acquired by express grant, such clause must be expressly stated in the contract of sale, mortgage or any other document in accordance with the manner of transfer. Easements are a right in rem, that is, they are available to the whole world. It can also be subject to limitations and can also be restrictive. Easements can be positive or negative. While on the other hand, licenses can only have a positive nature.
Furthermore, the law talks about provisions governing the suspension, termination and renewal of easements. How easements differ from licenses was also discussed. The article also explains the concept of license along with its requirements. A license can be revocable as provided in the Act and irrevocable as provided in Section 60 of the Act. They can also be transferred according to § 56 of the Act. It is an in personam right which is not available to the whole world but is granted personally.
SHIVAM GOEL
References
- http://theindianlawyer.in/statutesnbareacts/acts/i19.html
https://indiankanoon.org/doc/82950642/
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