The notion of the easement has been provided under Section 4 of The Indian Easements Act, 1882. According to Section 4, an easementary right is a right possessed by the owner or person authorized by owner of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land or property.
It provides the right to do or 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.
Essentials of Easements
- Dominant and Servient Heritage
For the enjoyment of the right of easement, there should be necessary existence of two properties i.e dominant and servient heritage. Because as per the definition, it is the right exercised by the owner of one property for enjoying the benefit of his/her land, over the property of some other person. Dominant and servient heritage cannot be one.
- Separate owners
In order to execute the right of easements, owners of the two properties i.e. dominant and servient heritage shall be different and should not belong to a single person.
- Beneficial Enjoyment
The object of easements is that the dominant owner enjoys it in a way that includes express or implied benefits.
- Positive or Negative
Easements can be both positive or negative meaning positive refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the negative denotes an act of prevention. The easement right of an owner of dominant heritage can do an act or prevent the servient owner from doing something but he cannot bind the servient owner to do something for him.
Classification of Easements
Section 5 of The Indian Easements Act, 1882 provides the following types of easements:
- Continuous or Discontinuous
Continuous easement, whose enjoyment may be continued without the intervention of any individual conduct or act of a man. Whereas, Discontinuous easement is where the right of easement for the enjoyment which interference of an individual is required.
- Apparent or Non- Apparent
An apparent easement is where the existence of which can be noticed through a permanent sign. Whereas, a non-apparent easement is just contrary of what an apparent easement is. Meaning it is not visible through an inspection as there is no permanent sign as such.
- Limitations or Conditions of Easements
An easementary right can be permanent or for a period of years or for a limited term. It can also be periodically interrupted or maybe exercisable at a particular place, between certain hours, and for a certain or particular purpose. These rights can also be granted on a condition that such a right shall become void or voidable on the execution of some event or non-performing of some act. These limitations or conditions which regard to the right of easement is provided under Section 6 of the Act.
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Modes of Acquisition of Easements
- Express Permit
The easement can be taken through an express permit made by providing such a right in the deed of sale, mortgage or through any other mode of transfer. This provides expressing by the grantor of his clear intention to provide express permission.
Easementary right can be acquired in implied conditions in the following manner
- Easement of Necessity
Under Section 13, the circumstances where the owner or occupier cannot use his property without enjoying the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.
- Quasi Easements
Where a person transferring his property to another person then-
If an easement is continuous, apparent, and necessary to enjoy, then the transferee shall be entitled to it,
If such an easement is continuous, apparent, and necessary to enjoy, the transferor has a right to such easement over the property transferred by him
Where the 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 also he is entitled to such a right of easement.
- Prescriptive Easements
Under Section 15, the following are the requisites-
Right of the easement must be definite and certain,
Right need to be independently enjoyed without any agreement with the servient owner,
Right must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years, and in case of any government property the period of non-interruption shall be 30 years.
- Customary Easements
An easement right can be acquired by virtue of a local custom also. These are called customary easement rights. Section 18 of the Act deals with it.
Extinction of Easements
- Dissolution of Servient Owner’s right
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.
- Expiry of time or happening of an event
When an easement is acquired on certain conditions or for a certain purpose or for a certain period of time. On the attainment of such condition or purpose or expiry of the time, the right of easement extinguishes.
- Extinction by release
Where the owner of the dominant heritage releases the right of the easement to the servient owner, the right ceases to exist.
- Termination of necessity
When there is a situation of necessity and termination of the easement is bound
- Useless Easements
In case when the easement is of such a nature that is no longer useful or has become incapable of being beneficial.
- Permanent change in the Dominant Heritage
When the essence of the dominant heritage changes permanently, with the increase in the burden on tenement, the right of easement ceases to exist.
- Extinction by the destruction of either of heritages
In a scenario where either of heritages gets destroyed, the easement comes to an end as it is essential for two properties to exist for exercising the right.
- Unity by ownership
In the case where the 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.
Suspension of Easements
Section 49 provides that easement can be suspended if:
- An easement is or can be suspended when the dominant owner becomes entitled to the possession of servient heritage for a limited interest.
- When the servient owner becomes entitled to the possession of dominant heritage for a limited interest, the easement is suspended.