Kinds of easement under Indian easement Act,1882
Man is a social animal. He expects assistance and cooperation from every body of the society. He wants that no one should interfere in his property and rights relating to enjoyment of his property. With this concept, the easement has originated. It gives permission and right to enjoyment of the property of its owner and occupant.
Definition of Easement –
According to section 4 of Indian easement Act,1882 , 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.
Example- ‘A’ is the owner of a property. He will construct something on his land however he cannot construct an object that makes a disturbance to his neighbour in victimization natural facilities like; light-weight , air ,etc,.Getting air and sunlight is ‘B’ s easement .
Essential elements of easement –
• Dominant Heritage and servant heritage :- The first essential element of the easement is that there must be a dominant Heritage and servient heritage. The Heritage in which there are some privileges is called dominant heritage and the property of on which some liabilities are imposed is called servient heritage.
• Right- in-rem of easement :- it is a right in rem. This right is available not only against servitude but also against the whole world. If any person interference in the east end of the dominant owner, then the dominant owner can file a suit against the person in court.
• Easement Negative or Positive:- Easement can be positive or it can be negative. The action of the dominant owner on servitude owner of the property is positive. While prohibiting owner of the spiritual property is a negative easement.
• Easement used as the status of power of land or occupant:- The owner of the property must use easement as the status of power. If someone has no property, then there is no issue of the use of easement so easement is attached to land.
Nature And Duration of easement-
According to Section 6 of the Easements Act, 1882, “An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable solely at an explicit place, or at certain times, or between certain hours, or for a particular purpose, Or on condition that it shall commerce or become void or revocable on the happening of a specific event or the performance or non-performance of a specified Act.”
The nature of easements is described under Section 7 of the Act, 1882 which states that easements are restrictions of one or the other of the following rights, namely:
(a) Exclusive right to enjoy –The prerogative of each owner of immovable Property (subject to any law for the nowadays in force) to relish and lose identical and every one merchandise therefrom and accessions thereto.
(b) Rights to benefits arising from scenario the right of each owner of stabile property (subject to any law for the present in force) to relish while not disturbance by the other natural professionals that arise from its situation.
Kinds of Easement –
There are four different types of easement. According to section 5 of Indian Easement Act , the types easements are –
• Continuous Easement
• Discontinuous Easement
• Apparent Easement
• Non- Apparent Easement
1. Continuous Easement –
- Easement which are of continuous of nature are called as continuous Easement.
- It can be made without any interference.
- It add a special quality to the property.
- Continuity doesn’t means that continuity of enjoyment however means to require the property permanently.
- For example:- Right to receive light and air ; to flow water on others land by drainage; drainage passing through others land; right to repair etc.
2. Discontinuous Easement –
- The easement for whose enjoyment human act is necessary is known as discontinuous Easement.
- It is necessary that human act should be done on the land of servient owner.
- Act of man does not mean that it is such an act only which is necessary for the use of easement.
- For example :- Right to passage ; right to throw garbage on others land; right to flow water etc.
3.Apparant Easement :-
- It is known as express easement.
- Its existence is appears form any permanent sign.
- It is such right which can be expressed or referred by external permanent sign of property.
- For example:- Right to flow water from drainage; doors , windows and rains are some such things that are visible to all or any persons if any drain is underground and might be seen by a competent person is apparent easement.
4.Non-Apparent Easement –
- It is also known as invisible easement.
- It is in use but there is no visible sign or proof of the being used.
- It cannot be seen by a competent person.
- For example:- right to stop construction above certain height, rite of passage, right to receive support.
An Easement may be –
- Permanent easement:- It is of permanent nature. It is the general rule of easement to be permanent. A limit or condition is exception .
- Limited easement:- It is temporary easement . It is meat for limited period or purpose.
- Conditional easement :- It is such easement which depends upon fulfillment depends upon certain conditions.
Whenever Immovable Property is involved , there are certain rights linked to the enjoyment of such property , without these rights , such properties might not be simply and absolutely held and enjoyed. Such rights are referred to as Easements.
So there are essentially 4 types of easement under Indian Easement Act, 1882 , the Continuous and discontinuous , apparent and non – apparent easement.
Author: Kajal Bind,
Prayag Vidhi Mahavidyalaya (Allahabad State University) 2nd year, BA.LLB