The Right To Use Another’s Property Legally: Governance of Easement Act, 1882

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Introduction of Easement under Easement Act, 1882

The concept of the easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an elementary 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.

There are a variety of easement types. An affirmative easement is one in which an owner of land authorizes the use of his or her land to another. A negative easement is one in which a person’s rights to use land are restricted, such as by limiting a neighbor’s right to block light or a view.

Easement Restrictive of Certain Rights

Section 7 of the Indian Easements Act, 1882 contains Easements restrictive of certain rights. Easements are restrictions of one or other of the following rights:

  • The exclusive right of enjoyment– The exclusive right of every owner of immovable property subject to any law for the time being in to enjoy and dispose of the same and all products thereof and accessions thereto.
  • Rights to advantages arising from the situation– The right of every owner of immovable property subject to any law for the time being in force to enjoy without disturbance by another the natural advantages arising from its situation.

Rights and Remedies Under an the clauses of Easement

As a general rule, an easement holder has a right to do “whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted,” as long as they do not place an unreasonable burden on the servient land. On the other hand, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder’s use of the easement. What constitutes an undue burden depends on the facts of each individual situation.

If a court determines that a servient estate is unduly burdened by unreasonable use of the easement, the owner has several potential legal remedies. These include court orders restricting the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of their rights and damages the servient estate, and in some cases termination of the easement.

Likewise, remedies exist for interference by the servient owner. Interference with an easement is a form of trespass, and courts frequently order the removal of an obstruction to an easement. If interference with an easement causes a reduction in the value of the dominant estate, courts may also award compensatory damages to the easement holder.

Transferability of a property under the clauses of Easement

In general, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the transferring document. But the document transferring the dominant estate may expressly provide that the easement shall not pass with the land.

Because easements in gross are treated as a right of personal enjoyment for the original holder, they are generally not transferable. However, several states have enacted statutes designed to facilitate the transfer of easements in gross. The transfer of easements in gross for commercial uses such as telephones, pipelines, transmission lines, and railroads is often permitted.

Remedies for violation of property rights

Regarding the cases of easementary right of light the Courts generally do not interfere by way of injunction where the courts find that the obstruction of light is very slight and where the injury sustained is trifling, except in such rare and exceptional cases. Here again it is necessary to understand that no damage is substantial unless it materially diminishes the value of the dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.

In India the Court has discretion: It may or may not issue an injunction depending on the fact- where the injury is such that pecuniary compensation would not afford adequate relief.

Important Judgements related to Property Rights under Easement Act, 1988

  • Copeland v. Greenhalf:  It was held that easement is a right and it must relate to doing of an act upon or in respect of certain other lands which is not his own. It is clear that for constituting an easement the subject-matter of the right must be definite, certain and specific.
  • K. Kolandaisamy Gounder v. Manickan: It was held that an easement is a privilege by which owner of one tenement has the right to enjoy over the tenement of another.
  • Radhika Narain and others v. Smt. Shundra Devi and others: It was held that for the existence of easement it is necessary that obligation of its use must be on the ownership of any person who is not the owner of the dominant heritage.
  • State v. Hiralal: it was held that “for easement of necessity it is essential that first, it should fall within the definition of “easement” under Section 4 of the Act. Unless it does not come within this definition and does not fulfill the requirements of easements, it would not be proper to consider whether it is an easement of necessity or not and when falls within the definition of easement only, then it would be good to consider that it is related to what kind of easement and whether it is an easement of necessity or not.”
  • Prabhawati Devi v. Mahendra Nath SinghIt has been held that there is no hesitation in taking judicial notice to customs and holding that in absence of any evidence to the contrary, that such custom is well established and prevailed in that area.

Conclusion

The Indian Easements Act, 1988 provides for the whole concept of the 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 the servient owners 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.

Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor’s land to gain access to the road, as well as the right of a Municipal Corporation to run a sewer line across a strip of an owner’s land, which is frequently called a right of way. Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with the Statute of Frauds and can be inherited pursuant to the laws of Descent and Distribution.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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