This article has been written by Pooja Kapur, a fifth year law student from Amity Law School, Noida. She has discussed the law of easements in India along with the concept of licenses.
Meaning and nature of Easements
The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an easementary right is a right possessed by the owner or occupier of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted because without the existence of this right an occupier or owner cannot fully enjoy his own property.
It includes the right to do or continue to do something or to prevent or to continue to prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land.
The word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to in the provision is known as the Dominant Owner and the land for the benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Serviant Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage.
- ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to move out of the street. This is known as right of easement.
- A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a surface of certain land is not a right of easement.
- X’s right to go on his neighbour Y’s household for fetching water from the well for the purpose of his own household is a right of easement. Here, the way to the well is through Y’s land only. Hence, X has an easementary right to pass through Y’s household.
In the words of great jurist Salmond, easement is that legal servient which can be exercised on some other piece of land specifically for the beneficial enjoyment of one’s own land. Right of easement is basically a form of privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one’s own land.
Other examples of right of easement includes-
- Right of way
- Right to discharge rainwater
- Right to sunlight etc
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.
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.
The easementary right exists only when two heritages are adjacent to each other. It is a right in rem, which means a right available against the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and no on one’s own land.
Classification of Easements
Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–
Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued without the intervention of any human conduct or act of a man. There is no interference by a man and it adds special quality to the property. While, on the other hand, right of easement for the enjoyment which an interference of a man is required is known as discontinuous. In this kind of easement, it is necessary that a human act is done on the servient heritage.
Apparent or Non- Apparent
An apparent easement is one the existence of which can be seen through a permanent sign. It can be visible by a careful examination and on reasonable foresightedness. It is also known as express easement. An inspection is required to check the existence of a right. 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.
Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of easement is not visible through an inspection. There is no permanent sign as such. The right is in use but is not visible and thus, is known as an invisible easement. For example, A’s right annexed to A’s land to prevent B from building on his own house.
Another example to explain non-apparent easement is that the right to stop construction over a certain height.
Limitations or Conditions of Easements
An easementary right may be permanent or for a period of years or for a limited term. It can also be subjected to periodical interruption or may be exercisable at a particular place, between certain hours and for a certain or particular purpose. This right can also be granted on a condition that such a right shall become void or voidable on happening of some event or non performing of some act. These limitations or conditions which regard to the right of easement has been specified under Section 6 of the Act.
Section 7 specifies that the easements are restrictive of certain rights which are as follows-
- Exclusive right to enjoy
- Right to advantages arising out of the situation
Profit a Prendre
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of easements. An instance to explain the concept is, a right to take earth from the land of the other person for making an earthenware is a profit a prendre. This is basically a profit made out of the land of the other person. Other examples of profit a prendre-
- Right of fishery
- Right to take fruits of trees in the season
This is the right which is exercised on the land appurtenant to the dominant heritage. Hence, there shall be the existence of two heritages i.e. dominant and servient. The owner of the dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do something on the land of servient tenement for more beneficial enjoyment of the dominant heritage.
Modes of Acquisition of Easements
The easement can be acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it compulsory for it to be in writing and duly registered.
Easementary right can be acquired in implied circumstances in the following ways-
Easement of Necessity
Section 13 of the act deals with this. This consists of the circumstances where the owner or occupier cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.
For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.
When a joint property is partitioned amongst various coparceners and if right of easement over one share of the property is essential for the enjoyment of the share of the other coparcener then latter shall be entitled to easement.
In the case of a person transferring his property to another person then-
- If an easement is continuous, apparent and necessary to enjoy, then in such a case the transferee shall be entitled to it,
- If such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right to such easement over property transferred by him
- In case of partition of the property of the joint family, if an easement is continuous, apparent and necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to such a right of easement.
Easements are quasi as those are arising out of circumstances,i.e. When common properties are converted into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of right of easement.
For example– P’s right attached to Q’s house to receive air and light through a window without any obstruction by his neighbour. This is a continuous.
Section 15 provides for this type. Following are the requisites-
- Right must be definite and certain,
- Right must have been independently enjoyed without any agreement with the servient owner,
- Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.
An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town having a right to bury the dead in a particular area or riparian right to use water.
Extinction of Easements
Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of extinction of easements.
Dissolution of Servient Owner’s right
In the situation where the grantor ceases to have any right in the servient tenement because of some reason, then the right of easements ceases to exist as well. This has been specified under Section 37 of the Act. For eg- X grants a piece of land to Y for a period of 20 years in the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end. Thus, easementary right granted to Z ceases to end as well.
Expiry of time or happening of an event
When an easement is acquired on certain conditions or for certain purpose or for certain period of time. On the fulfilment of such condition or purpose or expiry of the time, the right of easement extinguishes as well as in accordance with Section 6 of the Act.
Extinction by release
Where in a situation the owner of the dominant heritage releases the right of easement to the servient owner, the right ceases to exist. Such a release can be both expressly or impliedly made. For eg- P has a right to discharge water through the eaves to Q’s yard. P authorized Q to construct a building to such a height as not be able to discharge water. Q builds it and P’s right comes to an end.
Termination of necessity
When necessity terminates the easement of necessity terminates as well. For example- A grants a piece of land to B on which easement of necessity for B is the right of his way over A’s land. Later on, B purchases a part of the A’s land over which he may pass to reach his own land. Here, the necessity has ended and so does the easement.
When easement is of such a nature that is not useful or becomes incapable of being beneficial at any time or under any circumstances, then the right of easement ends.
Permanent change in the Dominant Heritage
When the nature of the dominant heritage changes permanently with increase in burden on tenement, then the right of easement ceases to exist as the purpose of it was the beneficial enjoyment of the dominant heritage. For example- A’s house is located such that he has a right of way by passing through B’s house. Later, due to earthquake, B’s house got cut off and thus, right of easement ends.
Extinction by destruction of either of heritages
When either of heritages gets destroyed, the easement ends as it is essential for two properties to exist for exercising the right.
Unity by ownership
By unity of ownership it is indicated that when one person becomes the owner of both the dominant and servient heritage then the right of easement terminates. For instance, A has right of easement over B’s property. Later on, A purchases B’s property and becomes the owner of B’s property. In such a case, easement extinguishes.
Another example which can be stated her to explain the concept is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement terminates.
Suspension of Easements
Section 49 of the Act provides that easement can be suspended under the following circumstances-
- An easement is or can be suspended when the dominant owner becomes entitled to the possession of servient heritage for a limited interest. An example which can be stated here to explain the concept is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement suspends.
- When the servient owner becomes entitled to the possession of dominant heritage for a limited interest, the easement is suspended.
Thus, where both the dominant and servient owner becomes one, easement is suspended.
Revival of Easements
Section 51 of the Act provides for the situations wherein easement suspended or extinguished can be revived, which are as follows-
- When an easement is extinguished by destruction of either of the heritages then it can be revived-
- If the heritage is restored in 20 years.
- If the heritage is rebuilt in 20 years
2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right can be revived and also through an order of a competent court.
Section 52 of the Act deals with the concept of licenses. Where one person grants to another person a right to do or continue to do something in or upon the immovable property of the grantor, something which if he does will be unlawful without the prior permission or the availability of the grant. Such a right shall not amount to an easmentary right or creation of interest in the property.
Essentials of licenses
- It is a permission granted, i.e a right arising out of permission.
- Legalises an act.
- Is revocable on the act of the grantor.
- It is always in respect of immovable property.
- It is a right in personam.
Revocation of licenses
License can be revoked in following ways-
- If from the cause of preceding the grant, the grantor himself ceases to have any interest in the property, the license gets revoked. Grantor’s interest comes to an end.
- By express and implied release of the license by licensee.
- There are certain cases wherein a license is issued under certain conditions or limitations. This includes a license issued on a condition that if a certain act is doe or is not performed then the license may become void. In such a situation wherein these acts are performed then license can be revoked. Also, licenses are granted for the fulfillment of certain acts and once it is fulfilled license can be revoked.
- Where a property in relation to which a license was granted gets destroyed due to any reason, then a license can be revoked.
- Where, a licensee himself becomes the owner of the property for which license was granted, then the purpose for which license was granted ceases to exist and thus, the license also ceases to exist and gets terminated.
- When licensee does not use it for a period of 20 years then the license gets revoked.
According to Section 56 of the Act, a license can be transferable under the following conditions-
- A license to attend a place of public entertainment may be transferred by the licensee. This may be gathered from the grant or contract, or from surrounding circumstances or local usage. For instance, P grants Q, a right to walk over P’s field whenever he pleases. The right is not annexed to any immovable property of Q. The right cannot be transferred.
- Transfer by licensee- The general rule is that the licensee cannot transfer his license. If he transfers then the transferee becomes a trespasser and can be or may be ejected.
Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled with a transfer of the property, then it is irrevocable.
A license coupled with an interest in a land is binding. A license coupled with profit a prendre is irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut and carry timber on payment of royalty.
If the licensee, has executed some work which is permanent in nature and has incurred expenses, the licence cannot be revoked and hence, is irrevocable. For example, there are two companies, namely X and Y having lands adjoining to each other. The agents were common who managed to put up the building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in Ramson V dyson.
Tabular difference between Licenses and Easements
2. It is a right in personam.
2. It is a right in rem.
3. This right cannot be attached.
3. It is a right which can be annexed to the property to which it is attached.
4. License is revocable.
4. Easements are not revocable at all.
5. It is a permission given by the licensor i.e the grantor.
5. It is acquired as of a right.
The Indian Easements Act, provides for the whole concept of right of easements and its regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment of his own land. It not only defines what actually easements consist of but also provides with its classification. Easements can be prescriptive, customary, quasi and of necessity.
Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act according to which it can acquired through an express grant or is in certain circumstances considered to be an implied right. If easement is to be acquired through the express grant then such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed in accordance with the mode of transfer. Easements is a right in rem, that is, it is available against the whole world. It can be subject to limitations as well and can be restrictive too. Easements can be both positive and negative. Whereas, on the other hand licenses can only be positive in nature.
Further, the Act talks about the provisions regulating the suspension, extinction and revival of the easements. Also, how easements is different from licenses has been discussed. The article also explains the concept of licenses along with its essentials. License can be revocable as mentioned in the Act and irrevocable as mentioned under Section 60 of the Act. They can also be transferred according to Section 56 of the Act. It is a right in personam which is not available against the whole world but is granted personally.