Tuesday 29 March 2016

ENJOYMENT OF CERTAIN RIGHTS IN THE PROPERTY OF NEIGHBOURS


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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