Easements: Definition and Essentials

Rule

An easement is a right which the owner or occupier of certain land has, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon or in respect of certain other land not his own (S.4, Easements Act).

• The land that benefits is the dominant heritage. Its owner is the dominant owner.
• The land that bears the burden is the servient heritage. Its owner is the servient owner.
• An easement goes with the dominant heritage. It cannot be transferred apart from it (S.6(c), TPA; S.19, Easements Act).

The flowchart shows the structure and the ways an easement is acquired.

flowchart LR
  E(["Easement (S.4 Easements Act)"])
  E --> D["Dominant heritage<br/>(benefited land)"]
  E --> S["Servient heritage<br/>(burdened land)"]
  E --> ES["Essentials: two tenements,<br/>different owners, benefit<br/>to the dominant land"]
  E --> AC["Acquisition"]
  AC --> AC1["Necessity / quasi-easement (S.13)"]
  AC --> AC2["Express grant (S.8, S.12)"]
  AC --> AC3["Prescription: 20 yrs (S.15)"]
  AC --> AC4["Custom (S.18)"]

Requirements

Kinds of easement

Acquisition

Prescription under S.15

• Light or air to a building, and support: peaceable enjoyment, without interruption, for 20 years.
• A right of way and other easements: peaceable and open enjoyment, as an easement and as of right, without interruption, for 20 years.
• The 20 years must end within 2 years before the suit.
• An interruption counts only if the claimant submits to it or acquiesces in it for one year after he knows of it and of who caused it.
• The Latin test is nec vi, nec clam, nec precario: not by force, not in secret, not by permission.

Extinction, suspension and revival

Illustrations

1. Right of way by prescription

• Facts: For 25 years Ravi has walked openly through Suresh's compound to reach the road, without asking leave. Suresh now builds a wall across the path.
• Result: Ravi can claim a prescriptive right of way (S.15) if he sues within 2 years of the 20 years ending.
• Why: Open and peaceable use as of right for 20 years ripens into an easement.

2. Right to light

• Facts: Anita's windows have taken light across Bharat's open plot for 22 years. Bharat plans a 5-storey block that will shut out the light.
• Result: Anita has an easement of light (S.15). She can stop a building that materially reduces it.
• Why: Light to a building enjoyed peaceably for 20 years without interruption is a prescriptive right.

3. Use by permission

• Facts: Ravi uses the path only because Suresh wrote: "You may use my path until I need it."
• Result: No easement, however long the use.
• Why: Use by permission is not use as of right (nec precario: not by leave).

4. Easement of necessity

• Facts: A sells the front half of his plot, which faces the road, to B. The back half he keeps has no other access.
• Result: A has a right of way over the front half (S.13).
• Why: An easement of necessity arises on the transfer itself. No period of use is needed.

5. Personal benefit only

• Facts: B lets A park his car on B's land as a favour.
• Result: Not an easement. It is a licence.
• Why: The benefit is to A personally, not to any dominant land.

6. Merger

• Facts: A has a right of way over B's land and then buys B's land.
• Result: The easement ends by unity of ownership (S.46).
• Why: No one can have an easement over his own land.

Key Cases

Hero Vinoth v Seshammal, (2006) 5 SCC 545

• Facts: The appellant claimed a right of way over the respondent's land as an easement of necessity and by prescription.
• Held: An easement of necessity needs absolute necessity, not mere convenience. Prescription needs proof of use as of right for the full period.
• Principle: Courts apply the S.13 and S.15 conditions strictly.

Distinctions

Recall Check

1. What are the essentials of an easement under S.4?
2. What are the conditions of a prescriptive easement under S.15?
3. How does an easement of necessity differ from one by grant?
4. Name four ways an easement is extinguished.

Flashcards