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Easement
An easement is a legal right to occupy or use another person’s land for specific purposes. The use of the land is limited, and the original owner retains legal title of the land. A legally binding easement must be made in writing, the exact location stipulated in the property’s deed. In most cases, even when the land in question changes hands, the easement remains in effect and subsequent owners are required to allow the easement owner to continue using the land as specified. In India law of easements are governed by Easement Act, 1882. Section 4 of this Act defines “easement” as the right to use another person’s land for a designated purpose.
Essentials of Easements
1. Dominant and Servient Heritage
For the enjoyment of right of easement, necessary existence of two properties i.e. dominant and servient heritage is a must. This is because as per the definition, it is the right exercised by the owner or occupier of one land for enjoying the benefit of his/her land, over the land of some other person. Dominant and servient heritage cannot be one. Thus, the existence of two properties and that to be separate from each other is essential. The easement right exists only when two heritages are adjacent to each other.
2. Separate owners
For exercising the right of easements, owners of the two properties shall be different and not a single person.
3. Beneficial Enjoyment
The object of easements is that the dominant owner enjoys it in a way which includes express and implied benefits.
4. Positive or Negative
Easements can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the servient owner from doing certain act or acts. In a right of easement an owner of dominant heritage can do an act or prevent the servient owner from doing something but he cannot bind the servient owner to do something for him.
Kinds/ Types of Easement:
There are 6 types of easement under Section 5 of Easement Act, 1882. The type of easement depends on the type of property involved, the relationship of the parties, and the specific use for which the easement is granted.
- Public Easement
- Private Easement
- Continuous Easement:
- Discontinuous Easement:
- Apparent Easement:
- Non-apparent Easement:
Public Easement
A public easement grants a certain defined area of land for public use. An example would be the granting of public access of a portion of the landowner’s property for a park or touring.
Private Easement
Private easements occur when a property owner sells an easement to an individual. This may be for a number of reasons, including giving a neighbor driveway access, or sharing a sewer line or well with a neighbor.
Continuous Easement:
A continuous easement is one whose enjoyment is, or may be, continual without the act of man. Illustration: A right annexed to B’s house to receive light by the windows without obstruction by his neighbor A. This is a continuous easement. A continuous easement is extinguished when it is totally ceased to be enjoyed as such for an unbroken period of 20 years.
Discontinuous Easement:
A discontinuous easement is one that needs the act of man for its enjoyment. Illustration: A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
Apparent Easement:
An apparent easement is one which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him. Illustration: For example- There is a drain from A’s land to B’s land and from there it led to an open yard. This can be visible through a clear inspection and is an apparent easement careful inspection by a person familiar with such matters. These are apparent easements.
Easement by Prior Use
An easement by prior use is based on a notion that, on occasion, landowners intend to form an easement, but forget to include it within the deed. In this case, five elements are needed to establish an easement by prior use: Common ownership of both properties at any one time A severance of the properties Use of easement before and after the severance Notice of the easement The easement is for necessary and beneficial use For example , Bob owns two separate lots, one of which provides access to a public street, the other sits behind it. Bob’s driveway starts on the second lot and runs through the first lot to the public street. He sells the street-adjacent lot and forgets to specify the driveway area as an easement in the deed. Most likely, the court will determine Bob is entitled to an easement by prior use, as it is necessary for him to access his property from the street.
Easement Rights
An easement holder is entitled to do whatever is reasonably necessary to fully utilize the property for the purpose for which the easement was created. The property owner may also use the land as long as such use does not interfere with the purpose of the easement. The following rights are recognized as easements, even if there are no official documents or agreements:
1. Aviation Easement:
The right to use the airspace over a property, flying above a certain altitude, where needed for spraying of property or other agricultural purposes.
2. Storm Drain Easement:
The right to install a storm drains to carry rainwater to a river, wetland, or other body of water.
3. Sidewalk Easement:
The right of the public to use sidewalks in front of a public area.
4. Beach Access Easement:
The right for neighboring residents to access a public beach, even if the access crosses private property.
5. Dead End Easement:
The requirement for a landowner to grant the public access to the next public way, even if such access crosses on his property.
6. Conservation Easement:
The right of a land trust to limit development, usually done for the purpose of protecting the environment.
Duration of an Easement
In general, if the legal easement does not specify the length of time the easement will be in effect, the courts can assume it was created to last indefinitely. In the case of an easement that specifies a termination date, the easement holder must stop use of the land on or before that date, or seek permission to extend the duration of the easement from the property owner.
Trespass Upon an Easement
Blocking a person who has an easement is considered “trespassing upon an easement,” an action for which the easement owner has a right to file a lawsuit.
Terminating an Easement
The act of terminating an easement requires the approval of the court. For a property owner to terminate an easement, at least one of the following facts must be proven in court:
- Both parties have agreed to the termination
- The easement has reached its expiration date
- The easement holder discontinued use the of property
- The need for the easement no longer exists
- The easement holder is creating a hostile use of the property
- The owner of an easement has died.
