Thursday, August 27, 2015

EASEMENTS




There are several villages in the midst of agricultural lands. There are houses surrounded by other houses. Inhabitants of these places have one common disadvantage – they do not have direct access to the road. To reach the public road they have to pass through someone else’s property.

There are several acres of sprawling agricultural lands for which water has to come through adjoining lands. In some remote areas people collect water from a distant water body. To reach the water source they have to walk over a long stretch of land, which does not belong to them. The owners of such lands cannot deny use of their lands.

The Easements Act of 1882 clearly says that it is the privilege of the people to use the land out of necessity, which the owners cannot deny. Easement is right to use another’s property. It is a right, which the owner of a particular land enjoys over an adjacent property, which he does not possess. It is the right over a property belonging to someone else and not to the person claiming easement.
The landowner who will benefit from the property which is not his own and over which he has a right is called dominant heritage or dominant tenement and the owner of such a land is called the dominant owner. Dominant because the owner has control over the use of that particular land which he does not possess.

Whereas the landowner who cannot enjoy his own land over which another owner has a right is called servient heritage or servient tenement and the owner of such a land is called servient owner. Servient or subordinate because he has to abide by the requirements and convenience of the dominant owner. In fact, whether he likes it or not, it is a burden brought to bear on him by grant, by custom or by prescription.

X has a piece of land. Y has the right of way over it. Here X is the servient owner and has the servient heritage. Y is the dominant owner and he has the dominant heritage.

Servient Heritage means an inherited property over which the dominant owners have a right to use it to their advantages. Dominant Heritage means inheriting a right over another’s property without owning it.

The title to easement may be by grant, by custom or by prescription. An easement can be acquired by grant. The deed 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 favor of the grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land.

Prescription means getting a right by continuous assertion of the right, which has been in use for a long period of time. According to the Indian Easements Act, for example, the inhabitants of a building enjoying the access and use of air and light as a right continuously for over 20 years have the right to enjoy them without any condition or restriction.

Easement by virtue of custom is a legal right acquired by the power 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.

The dominant owner has the right over the property of the servient or subordinate owner. It is a privilege enjoyed by the dominant owner over the property, which he does not own. The servient owner cannot enjoy his own property. He cannot do anything on his own land and he is bound to suffer for the advantage of the dominant owner. If at all the servient owner does something on his own property, the dominant owner has the right to prevent it.
In an easement there must be a dominant owner and a servient owner, it must be for the advantage of the dominant owner, it may be permanent or temporary, or for a limited period of time or seasonal or for a specified event or out of necessity, the owners must be two different persons and it must be capable of forming the subject matter of a grant.

There are several type of easement. Right of way, right to air and light, riparian rights, right to build, right to uninterrupted flow of water are a few.

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. We are dealing with easements, which form subject matters of grant.

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.

RIGHT OF WAY

Private right to certain individuals by grant, rights to certain classes of people like inhabitants of a village by custom and common rights dedicated for the benefit of all are three classes of rights of way.

The private right of way is the means of access to and from a dominant heritage by way of grant. If a seller sells one of his adjoining properties to the purchaser, the seller reserves the right of way for passage running across the property sold. In this case the seller reserves the right of way in the sale deed in favour of the purchaser.

If the purchaser has no right of way to access the road, the seller will grant to the purchaser a right of way over his property. Here the purchaser of the plot has to execute a separate deed in favor of the seller granting a right of way. A right of way for the benefit of the public at large is normally acquired by prescription. A private right of way can be either permanent or periodic or for a particular time during the day only, or seasonal or for a limited time, for to and fro movement of human beings, cattle and light vehicles.

The deed of grant must clearly mention the purpose for 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. To make matters very clear a map with the properties and the passage marked in different colors must be annexed to the document of grant.

The dominant and servient owners have certain rights and obligations to maintain and preserve the easement. While exercising his right over the property of the servient heritage, the dominant owner has responsibilities to preserve the easement. His acts and deeds shall not put the servient owner in to inconvenience. Being the actual user he shall rectify the damages if any caused by his acts at his own expense.

The servient owner is not obliged to do anything for the advantage of the dominant heritage. He has no liability whatsoever to construct a way for the use of the dominant owner or to carry out repairs in case of any damage to the passageway. As the holder of the property he is free to use the servient heritage in any manner he likes, but his acts shall not dilute the right of the dominant owner.

AIR AND LIGHT

Easements of air and light arise only in the thickly populated cities and towns. Earlier buildings were constructed at random often ignoring the conveniences of the nearby inhabitants.  Virtually no space was left in between the buildings hindering airflow and natural light to the smaller houses. The inhabitants of houses who were getting fresh air and natural light suddenly found these denied to them because of a multistory building nearby.

Haphazard constructions are now a thing of the past. Presently, buildings are constructed in a well-planned manner. Leaving minimum space between two buildings for free flow of air and natural light is now mandatory.

Therefore, anyone who comes into possession of a servient heritage has to carry the burden of easement for all times to come for the benefit and enjoyment of the person who comes into possession of the dominant heritage. This sort of ‘master-servant’ relationship cannot be severed as long as such properties co-exist.


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