Easement – concept, essentials elements & types under transfer of property Act

EASEMENT: CONCEPT, ESSENTIAL ELEMENTS AND TYPES UNDER TRANSFER OF PROPERTY ACT

EASEMENT

Section 4 of the Transfer of Property Act 1882 defines “Easement” as:

“An easement is a right which the owner or occupier of certain land to do and continue to do something or to prevent and continue to prevent something being done in or upon in respect of certain another land not of his own.”

Peacock defines easement as:

“A privilege without profit which user gets from the owner of the property, by which the owner is prohibited to use the right of absolute use”.

According to Salmond:

“Easement is the servitude which is applied upon other parts of land for the benefit of a part of the land. It is not serviceable which is called benefit”. It was first defined in “Terms de la ley”. According to it “Easement is a privilege which a neighbor, keeps upon another neighbor, by instrument or by prescription, without profit, as same or as the way in his land or pond.” Hence, it is such a right which allows an owner of the property to enjoy his property without any interferences of any other person. Also, restriction is imposed on him to not to cause obstacles or hurdles in the property of neighbors.   

Illustration- ‘A’ is the owner of a property so he can construct anything on his land, but he cannot construct an object that creates disturbance to his neighbors in using natural facilities e.g., light, air etc. Getting air and sunlight is ‘B’s easement.

In the case of Ramcharan VS. Ram Ashray (A.I.R. 2008 Madhya Pradesh 105) the Madhya Pradesh High court while defining it, the court has stated that the right of enjoyment of one’s property is the easement. The word ‘Land’ used in Section 4 includes House. Further, on these grounds used word ‘Owner’ includes Occupant.

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ESSENTIAL ELEMENTS OF EASEMENT

  1. Dominant Heritage and Servient Heritage- There must be a dominant heritage & a Servient heritage. The property or the heritage in which there are some privileges, is called Dominant heritage and the owner of such property is called the dominant, whereas the property upon which the liabilities are imposed is called Servient heritage. Therefore, two properties are necessary for the easement.
  2. Dominant and Servient Heritage to be separate- An easement is not created on the happening of one property in two properties and it is expected that the owner of the two properties must be separate or different. In an easement, it is compulsory that the dominant and servant heritage must be separate properties. In Swamiyar Devsthanam VS. V. Kanak Laxmi” (1975 Andhra L.T. 483), the Court decided that anyone cannot acquire an easement from his property. Section 4 provides states it in the words “Which is not his own”. In the case of Radhika Narayan VS. Chandra Devi (A.I.R. 1981 Delhi 118) the Delhi High Court has also stated that “for the existence of an easement it is necessary that in it the enjoyment be on the land of such person’s owner who is not an owner of the occupied property”.
  3. Easement used as the status of power of land or occupant- Another essential element of the easement is that the owner of the property must use easement as the status of power. In other words, it can be said that the use of easement can only be done by the person who is the owner of the property. There is no issue in using the easement if someone has no property, so easement is attached to the land.
  4. The use of easement done for the beneficial consumption-  The easement must be used for the beneficial consumption of the dominant property which includes facilities, remote profits, etc.
  5. Non-availability of the easement to Servitude owner- Easement is available only to the Dominant owner, and not to Servitude owner. In “Ramchandra VS. Diwakar” (A.I.R. 1957 M.P. 44), Madhya Pradesh High court decided that “easement can be used only by the owner of the property”.
  6. Attachment of easement to property- Easement is an attached right with the land or property which is not related to the person and it accompanies the property and transfer after transfer of property.
  7. Easement: Negative or positive- Easement may either be positive or negative. The action of the dominant owner on the servient owner of the property is positive and prohibiting the owner of the spiritual property is a negative easement.
  8. Right-in-rem of easement- It is a right-in-rem, which means that this right is available not only against servitude owner but also against the whole world. The dominant owner can file a suit against the person in court if any person interferes in the easement of the dominant owner.
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Mohammad VS. Anantehari (A.I.R. 1998 Kerala) Kerala High court stated the following essential elements:

  • Dominant and servitude property is compulsory.
  • The beneficial consumption of the dominant property should be mandatory.
  • There must be separate personalities of the owner of the dominant and servitude properties.
  • It is the right of the owner of the dominant property to do any act.
  • Clarity and definite of the easement.
  • Accommodation of easement with the dominant property.

Similarly, in the case of Laxman Patnayak VS. Cuttack Municipal Council, Cuttack (A.I.R. 1985 Orissa 90), the Orissa High court laid down the following essential elements in the easement-

  • There must be an existence of two kinds of properties, i.e., dominant and servitude heritage.
  • Owners of the dominant and servitude properties must be two different persons.
  • The occupied owner can take beneficial enjoyment of his property in exercising easement.

KINDS OF EASEMENT

There are two types of easements. They are as follows:

  • Public easement: An easement in which the benefit of masses is vested any not benefited from any particular person or society is called public easement.
  • Private easement: An easement in which the interest of a particular person or section is vested is a Private easement. For example, the right to draw water from a natural water source may be regulated by the government who has a right to regulate the availability of water to the public in a particular region. Neither any suit can be instituted in the court nor injunction can be obtained to lesser down or deprived of this right of the Government. Also, the powers of Govt. cannot lessen down in the cases of irrigation, as mentioned in the case of Sumyan VS. N. Vellu, A.I.R. 2008 NOC 444 Chennai.
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Author: APURVA .,
3rd Year, Fairfield Institute of Management and Technology, GGSIPU

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