Friday 27 March 2015

EASEMENTS


Section 4 of the Easements Act, No. 5 of 1882 defines “Easement”, as a right 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.

Easement is also described as “a privilege without profit, which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements by which the servient tenement is obliged to suffer or not to do something on his own land for the advantage of the dominant owner.”


These definitions clearly contemplate two properties and two owners thereof. The land for the beneficial enjoyment of which the right exists is called a ‘dominant heritage or tenement; and the owner thereof is called ‘the dominant owner’ and the land on which the liability is imposed is called a ‘servient heritage or tenement’ and the owner or occupier thereof is called ‘the servient owner’.

The essential characteristics of an easement are:
(i)      there must be a dominant and a servient tenement;
(ii)     the easement must accommodate the dominant tenement;
(iii)    the dominant and servient owners must be different persons, and
(iv)    the easement must be capable of forming the subject matter of a grant.

An easement may be
(i)      continuous or discontinuous,
(ii)     apparent or non-apparent;
(iii)    limited in time or conditional;
(v)     of necessity,
(vi)    public or private.

An easement is acquired either by prescription or by grant or by custom. An easement is a right in an immovable property and is, therefore, an immovable property itself.

The Easement Act deals with five types of Easements:
(i)      Right of way;
(ii)     Right to air and light acquired by grant;
(iii)    Prescriptive right to light and air;
(iv)    Prescriptive right to pollute air and water;
(v)     Other prescriptive rights.

Easements which are commonly the subject matters of agreements between the parties are:
(i)      easements of right of way;
(ii)     easement of air and light; and
(iii)    easement in the nature of riparian rights.   

Easement may also consist of
Right to build;
Right of support;
Right to surface and percolating water,
Right to uninterrupted flow of stream,
Right to drainage, sewage.
Right to use the water of a stream for consumption and irrigation.

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 commence or become void or voidable on the happening of a specified event or performance or non-performance of a specified Act.


There are three distinct classes of rights of way:
Firstly, private rights in the strict sense of the term vested in particular individuals and such rights commonly have their origin in grant or prescription.

Secondly, rights belonging to certain classes of person or certain section of the public such as the inhabitants of a village and such rights commonly have their origin in custom.

Thirdly, public rights in the full sense of the term that is, which exist for the benefit of all the people and the source of which is ordinarily in dedication.

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