Generally,
almost all the properties which are subjected to sale transaction shall have
access to the property from the road so that the occupants of such premises
need not pass through the property belonging to other people. However, in some
cases there could be deprivation of such a facility. Even the owners of
agricultural lands do have this type of problem not only for human movement but
also for supply of water for irrigation where water for the land is to be flown
through the adjoining lands belonging to other persons in certain cases. The
rights of legally using the property owned and belonging to other persons by
any individual are called the Easement Rights and are dealt with under the Easements
Act, 1882, which provides that it is the privilege of the people to use the
land out of necessity, which the owners of such neighboring land cannot deny to
them. Thus, the term "Easement" refers to the 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 rights.
Dominant and
Servient Heritage:
Dominant
Heritage means inheriting a right by a land owner over another's property and
who will benefit from the property which does not belong to him but over which
he still has a right. The owner of such a land is called the dominant owner.
The term "Dominant" is being used because the owner has control over
the use of that particular land which he does not possess.
On the other
hand, the term "Servient Owner" refers to the actual landowner who
cannot object to the other person using his land, as using of such land has
become inevitable for such user. Such a owner is referred to as Servient or
subordinate because he has to concede to the requirements of the dominant owner
to make use of the land belonging to the servient owner. Thus, the Servient
Heritage is an inherited property over which the dominant owner has a right to
use while Dominant Heritage means inheriting a right by the dominant owner over
another's property without owning it. This concept can be illustrated through
an example. Suppose, X owns 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.
The mere
fact that the dominant owner enjoys certain privileges does not mean that the
servient owner is left in the hapless and helpless situation. Both the dominant
and servient owners have certain rights and obligations against each other to
maintain and preserve the easement. The Dominant Owner, while exercising his
right over the property belonging to the servient owner, has to make a
deliberate and positive effort to preserve the easement and the acts of such
dominant owner shall not put the servientowner into inconvenience. On the other
hand, the servient owner is neither obliged nor liable to do anything for the
advantage of the dominant heritage.
Various
types of Acquisition of Easements:
Under the
Easements Act 1882, different types of acquisition of easementary rights are
provided, which are discussed below:
Easement
acquired by Grant:
An easement
can be acquired by grant for consideration, which can be created by way of an agreement entered into between the Grantor and Grantee. This grant becomes
effective when the grantee exercises his right to enter upon the grantor's
land. The deed of easement may be separately drawn or may become part ofanother
deed.
For example,
X sells his land to Y and by the same deed he may grant a right of way to Y
over another piece of land belonging to him.
Easement by
Prescription:
This kind of
easement is acquired by a person by continuous use of a land for a long period
of time. The term "Prescription", under the Easements Act 1882 refers
to getting right by continuous assertion of the right, which has been in use
for a long period of time.
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, which is deemed to have been acquired by way of
Prescription.
Easement by
custom:
Under this category
of easement right, right of easement is acquired by the user by virtue of
custom having legal sanctity since the same can be acquired by the operation of
law through continuous use of a land over a long period of time.
All these 3
types of easementary rights available to the user by way of grant, prescription
or by custom are recognized under law.
Agreement to
be in writing:
Creation of
an easement does not assign or transfer the right of the actual owner over the
property in favour of the dominant owner. In the same manner, surrendering an
easement right does not imply transfer of property. Easement can be created,
altered, modified or released. To create easement by way of grant, it is
necessary that the same has to be reduced into writing and cannot be done
orally while easements by prescription
and custom need not be in writing.
Types of
Easements:
Easement
rights are of different types. Right of way, right to air and light, riparian
rights, right to uninterrupted flow of water, are a few such rights, which may
be acquired by way of prescription or custom or grant pursuant to the agreement
between the Grantor and the Grantee.
Right of Way
There are
three classes of rights available under right of way viz., [1] Private right to
certain individuals by grant, [2] rights to certain classes of people like
inhabitants of a village by custom and [31 rights reserved or dedicated for the
benefit of all.
Private right of way:
This can be
explained well through an example. Suppose a person sells one of his adjoining
properties reserving the right of way in the passage running across the
property sold. This right will have to be explicitly stated in the sale deed.
Similarly, if the purchaser has no right of way to access the road, the seller
will grant to the purchaser such a right of way over his property. Here also
the seller of the plot shall explicitly mention the fact of granting of right
of way in favour of the purchaser. However, 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 conveyance deed has to clearly
mention the purpose for which easement is granted. By the deed of grant the
servient owner gives full and free right to the dominant owner and his
successors a passage wide enough for movement of people and vehicles for a
price. To avoid ambiguity, it is advisable to obtain a clear map of the
properties and the passage marked in different colours and may be annexed to
the deed of conveyance.
Air and
Light
Easements of
air and light arise only in the places where buildings are constructed very
close to each other and often ignoring the inconveniences of the nearby
inhabitants. Lack of required space between the buildings will hinder air flow
and natural light to the houses constructed in close proximity. The predominant
objective of the Easements Act 1882 is only to prevent haphazard construction
of the buildings and to enable the user to ascertain his right of ingress and
egress to his property by making use of the property belonging to some other
person and also to enjoy free flow of light and air. However, exercising such
right by the user will in no way affect the title of the owner of the property.
In order to
regulate building constructions, bye-laws have been prescribed by the
Government making it mandatory for allowing the minimum set backs while
constructing buildings so that there could be free flow of air and natural
light.
Therefore,
before purchase of any immovable property, it is very important to verify as to
whether there exists a direct access to the property from the road. In the absence
of such a facility, the deed of conveyance should carry a clause of easement
rights to the purchaser to enable him to possess and enjoy his property with
comfort. It is also necessary for all the people to adhere to the guidelines
stipulated in the building bye-laws to avoid inconvenience and peaceful
enjoyment of the property and to live in harmony with their neighbours.
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