Property easement laws are the laws that govern the principle of an easement. An easement is a right that a person has over a property that is owned by another person. The right of easement grants them limited usage of that property. The easement can be expressly granted, such as through a sale deed or implied. For cases of implied easement that lead to legal conflicts, you can talk to a lawyer online to solve your issues.
Property easement laws in India are consolidated in the Indian Easements Act, 1882. All subsequent property easement laws have to conform to the provisions of this Act.
What is an easement?
Before discussing the substantive content of the property easement laws in India, one must understand what an easement is.
- An easement, established either impliedly or through an easement agreement, is a real estate concept that allows a scenario in which one party uses the property of another party, where a fee is paid to the owner of the property in return for the right of easement.
- Utility easements are the most common, such as the purchase of easement by public utility companies for the right to erect telephone poles or run pipes either above or beneath private property.
- Another type of easement is the private easement, which is an agreement between two parties that gives one party the right to use a piece of the other’s property for their own needs.
- However, while the payment of fees results in a profit for the property owner, easements can negatively affect property values as the tools necessary to effectuate the easement may end up affecting factors that affect property values, like visual appeal.
- An important type of easement is the easement of necessity. This type of easement happens when an individual needs to use another individual’s property in order to gain access to their own property. This type of easement is more liberal as it does not require an easement agreement and is enforceable by local laws.
- Thus, easements can be divided into three types: utility easements, private easements, and easements of necessity.
Important provisions of property easement laws
Property easement laws, codified through the Indian Easements Act, have several important provisions:
- Section 4 of the Act provides a definition for “easement” that all property easement laws have to abide by. The Act defines an easement as “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 it, the possessor of the right would not be able to enjoy their own property to the fullest.
- According to Section 4, easement granted through property easement laws confer the following rights:
- The right to do or continue to do something;
- To prevent or to continue to prevent something;
As long as the action or prevention is in connection with or in respect of some other land, which is not the person’s own, for the enjoyment of their own land.
- “Land,” in property easement laws, refers to everything permanently attached to the earth. Meanwhile, the words “beneficial enjoyment” are used to refer to convenience, advantage, or any amenity or necessity in the context of property easement laws.
- The person exercising the right of an easement through property easement laws is known as the “Dominant Owner,” whereas the owner of the land is known as the “Servient Owner.”
- The property on which the right of easement is being imposed is called the “Servient Heritage,” while the property for the benefit of which the right of easement is being imposed is called the “Dominant Heritage”.
- Section 5 of the Act gives a classification of easements for property easement laws to follow. The broad division is between continuous and discontinuous easements and apparent and non-apparent easements.
- Continuous easements are those easements whose benefits can be availed without human intervention or the Act of any individual or group. There is no interference necessary for this easement under property easement laws, which adds a special quality to the property.
- Conversely, the right of easement where human intervention is necessary to avail its enjoyment is known as discontinuous easement under property easement laws. In these kinds of easements, there must be a human act performed on the servient heritage.
- According to property easement laws, the main identifying characteristic of an apparent easement is that it can be observed visually. Such easements are visible by careful examination and by exercising reasonable foresightedness. These easements are also known as express easements.
- To establish the existence of a right permitting such an easement, an inspection of the premises, circumstances, and relevant agreements would be necessary.
- For instance, assume that there is a pipe from one person’s land to another’s land. From there, it leads to an open yard. As the pipe is visible, it is an apparent easement. The validity of this easement would be subject to an inspection.
- On the other hand, a non-apparent easement is the polar opposite of an apparent easement, according to property easement laws.
- This kind of easement does not manifest visually and would not be identifiable by an ocular inspection. Such a right exists as a principle, but there is no visual or physical usage of the land that results from such an easement.
- If a person owns an observatory and another person builds a skyscraper next to it, the latter’s building may interfere with the former’s usage of their land. This would mean that there is a non-apparent right of the easement under property easement laws to abstain from building something that obstructs the former’s view.
Other important provisions for property easement laws include Section 7, Section 6, which enlists the rights that easements may restrict, Section 13, which describes easements of necessity, and Section 18, which discusses customary easements. Easements may be mentioned as encumbrances in a sale deed, but property easement laws have no clear provision on this matter. If a conflict arises in relation to an easement, it would be advisable to talk to a lawyer online.