Building a large-scale structure demands much more than a blueprint and a workforce. There is often a question of property rights involved. It is here that the Construction Easement Act becomes critical. Easement acts are critical to ensuring property owners’ rights and convenience.
If you are concerned about the conflict of implied easements, it is recommended to select a construction company in India, such as Brick & Bolt, that is well-versed in all of the legal terms and enables the construction of a space compliant with all the regulations. Whether you are an experienced developer or a novice to these agreements, this Brick & Bolt guide will help you understand easement types and their implications.
About Easement Act
An easement allows individuals to use or occupy land owned by another party for certain purposes, with the right of ownership remaining with the legal owner. Most of the time, despite the transfer of ownership, subsequent owners allow the easement owner to remain on the property. The Indian Easement Act 1882 governs the law of easements. As defined in Section 4 of this Act, an easement gives someone the right to use their land in a specific manner. A right of easement is a property right that entitles the owner to limited use of a piece of property. Easements can be granted explicitly by property deed or by implied terms.
In cases where the beneficiary has used a piece of land for a prolonged period, by a grant or by prescription, the easement right can be transferred to them by law.
The Indian Easement Act: Why Are Rights Granted?
Easement rights receive legal authorisation with the purpose of enabling the effective use of land ownership. A property owner or occupant needs these rights to utilise land to its maximum potential. Through easements, a holder obtains permission to carry out and block particular actions in someone else’s land boundaries. Landowners need easement rights to make full use of their property amenities.
Types of Easements
The Indian Easement Act of 1882, through Section 5, establishes several methods for granting easements through property nature, party agreements and easement purposes. These are the multiple types of easements which exist:
Continuous or Non-continuous easement
Continuous easements enable property rights enjoyment through automatic means such as natural land usage and cattle grazing. Easements of this nature have specific requirements for human involvement, so people must carry out activities like lavatory building to activate them.
Apparent or Non-apparent easement
Apparent easements function as express easements because they become visible through permanent markings such as structures or signs. Easement rights which cannot be observed fall into the category of non-apparent easements because they remain unseen to the eye.
Elements of the Indian Easement Act
Under the law, land refers to all elements which stay permanently connected to the earth, and beneficial enjoyment describes the essential necessities tied to land usage. Multiple essential elements support the importance of the Indian Easement Act.
1. Dominant Heritage and Dominant Owner
The dominant heritage describes the land that receives benefits from easement rights. It serves to receive benefits and advantages from another property located in a different position. The dominant owner receives the advantages derived from property ownership.
A person who needs to walk through an adjacent property for access to their land benefits from being the dominant heritage and owner of the land. The privileges conferred to the dominant owner stay connected to their land and can change with the property during the sale or transfer. The easement functions as an ownership right rather than remaining as a right that belongs to an individual.
2. Servient Heritage and Servient Owner
The servient heritage represents all land affected by easement responsibilities which must bear its associated duties. The dominant owner needs this characteristic to access specific benefits located on the property through paths, water sources, or other utilities. A servient owner possesses the land subject to an easement duty while also maintaining ownership of both properties.
A servient owner must maintain clear access for dominant owners to use their rights. While keeping ownership of their land, the servient owner must respect dominant owner rights by avoiding actions that limit the easement benefits. When ownership grants passage through a road, the servient property owner cannot construct fences which block that access.
3. Separate Owners
An easement loses its purpose when dominant and servient landowners are the same since the landowner already controls both properties. Both properties being independently owned helps prevent confusion about the rights and obligations that exist between the participating parties.
Under the principle of separate ownership, easement rights survive property transfers because they transfer between new owners. A new owner of the dominant property receives all easement rights from the previous owner who granted the easement benefits.
4. Beneficial Enjoyment
The Indian Easement Act bases its foundation on beneficial enjoyment principles. Through this principle, the dominant owner can effectively exercise the rights granted by the easement. The rights of enjoyment through easements may be specified in writing or they can exist by implication.
Under express enjoyment, the easement rights receive explicit authorisation through written documentation which enables the dominant owner to employ the servient land according to specific terms.
5. Positive vs. Negative Easement
In the Indian Easement Act, there exist two separate categories of easements. These two easement categories function for opposite objectives because they assign specific privileges to the dominant landowner.
● Positive Easement
Through a positive easement, the dominant owner obtains permission to perform actions on servient land properties. Under this arrangement, the dominant owner may conduct various activities such as land crossing, water source usage or installation of specific fixtures on the servient land. The servient land becomes available through this arrangement so dominant owners can benefit their property by performing particular actions.
● Negative Easement
Through negative easements, servient owners must refrain from specific activities which would impede the rights of dominant owners on their land. A positive easement enables use, but negative easements restrict the use of the servient land. The servient owner lacks permission to construct blocking structures that hinder light or air access to the dominant owner’s property and plant vegetation obstructing views.
How to Acquire Easements?
Under the Easement Act, different acquisition methods exist to obtain easements.
1. Express Grant
A servient owner establishes an easement through an express grant when they directly provide dominance rights to the owner of the dominant heritage. Easements receive formal written documentation, either as agreements or deeds, to explicitly define the terms that govern them.
Features:
● A grant must exist deliberately with absolute clarity about the scope and reason of the easement.
● The easement duration depends on the terms the parties establish in their agreement.
● An express grant usually becomes valid through registration to establish its legal enforceability.
Example:
The written and registered permission from a landowner to their neighbour for private road passage through their property becomes an express grant easement. The express mode is a beneficial method since it establishes clear boundaries for easement permissions and rights for both dominant and servient owners.
2. Implied Grant
An easement may arise through implication even when all parties have not formally agreed to establish it. An easement naturally arises when the situation surrounding property use demonstrates the need for the dominant heritage to benefit from it.
Types of Implied Grants:
a) Necessity
A necessity easement is formed when the landholder of the dominant property needs to use the servient property for standard functionality. A piece of land becomes automatically subject to easements whenever it lacks access to key amenities such as water, light, or air during property division or sale.
● b) Quasi-Easement
The nature of quasi-easement develops when a property owner, prior to division, utilises land in one section to benefit areas in another section. When property division takes place and the new owner needs to keep using the same facilities, then an easement will automatically exist.
3. Acquisition by Prescription
Through prescription acquisition, a property owner can obtain rights by demonstrating continued possession of particular areas for twenty years. The acquisition of an easement becomes possible when the dominant owner establishes continuous use of the servient land for no less than 20 years without permission from the servient owner.
Key Conditions:
● The rights are established through open and uninterrupted use of property for 20 years (30 years for government properties) across the statutory period.
● Use of the easement must happen without any permission from the servient owner which demonstrates an opposition to their property rights.
● The dominant landowner needs to treat the servient territory like it holds the right that belongs to their property.
4. Acquisition by Custom
A landowner may acquire easements by developing customary rights because their land has been used according to established local practices and traditions by the community. The rights do not require prescription standards, but result from lawful customs that have been established within communities.
Features:
● To qualify as an easement through custom, the established practice must be both reasonable and established for an extended period of time.
● The passage of time surpassing all personal memory marks the duration needed for the practice to establish an easement right.
● Public policy and existing legislation should remain unimpeded by the custom’s existence.
Example:
When a specific community maintains a traditional path to reach a temple through generations of use in a particular village, then the law may grant them continued access rights even after selling the servient land to a new owner.
5. Statutory Easements
Specific laws and regulations can create easements in Indian Easement legislation even though the act does not establish separate categories for them. Public service companies or governmental bodies develop these easements when constructing power lines, drainage systems and public roadways.
Example:
Municipalities obtain drainage system installation rights through easements on private land properties under authorised legislation.
Termination of Easements
Section 37 to 47 of the Indian Easement Act enumerates how easement rights can be terminated. Some of these methods include:
● Termination of Servient Owner’s Rights: An easement automatically ends after the servient owner loses control over the subject property.
● Limited Period: The easement rights disappear when they were established for a certain time span or particular objective because the timeframe has run out or the purpose becomes unnecessary.
● Necessity Termination: The right to the easement expires when the necessity no longer exists to use it.
● Release: The dominant owner can terminate an easement either through explicit or implicit actions resulting in its complete dissolution.
● Destruction of Heritage: An easement automatically ends upon destroying either the dominant heritage or the servient heritage.
● Unity of Ownership: The easement automatically ends when both the dominant and servient heritages become owned by the same entity.
● Overburdening of Dominant Heritage: Excessive modifications to the dominant heritage property have the power to end the existence of the easement.
Conclusion
The Law of Easements is the legal framework for regulating easements in India. An easement is a legal document that grants property owners certain rights to enjoy their land to the fullest extent possible. Easements can be classified according to their nature and acquired in a number of ways. In some instances, easements may be terminated or suspended, and they may also be revived under certain conditions. The right to revoke, transfer, or make an irrevocable license depends on the circumstances.
Hemali Patel